Neary v. 1710700 Ontario Inc. o/a Ristorante Avanti, 2014 HRTO 1822

Human Rights Tribunal of Ontario

B E T W E E N:

Melissa Neary Applicant

-and-

1710700 Ontario Inc. o/a Ristorante Avanti and Anthony Ferriolo Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: December 23, 2014 Citation: 2014 HRTO 1822 Indexed as: Neary v. 1710700 Ontario Inc. o/a Ristorante Avanti

WRITTEN SUBMISSIONS

Melissa Neary, Applicant Shawn Weston, Counsel

1710700 Ontario Inc. o/a Ristorante Avanti and Anthony Ferriolo, Respondents Celina De Vuono, Counsel

1This is an Application dated September 6, 2013, alleging sexual harassment and sexual solicitations with respect to employment, discrimination with respect to employment because of sex and marital status, and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The purpose of this Interim Decision is to address the applicant’s request for the adjournment of the hearing in this matter, which is currently scheduled to take place on January 20 to 22, 2015.

3The applicant now resides in the United States. She is currently subject to a probation order for a period of 12 months, the terms of which include that she not leave the State of Michigan. As a result, the applicant is not available to attend the hearing in this matter, and will not be able to attend any hearing in Ontario until after July 31, 2015.

4The respondents object to the granting of an adjournment in this matter. This matter previously had been scheduled to be heard in August 2014 and was adjourned at the applicant’s request due to legal difficulties she was experiencing in the United States. The respondents did not take a position on this request, and the adjournment was granted. The Tribunal then canvassed the parties for new hearing dates, and the parties all agreed to the currently scheduled hearing dates in January 2015. These new hearing dates were confirmed with the parties by Notice of Hearing dated July 25, 2014.

5The respondents note that, if the applicant’s 12 month probation order expires on July 31, 2015 in order for her to be able to attend a hearing in Ontario, then the applicant must have known this when the probation order was made on July 31, 2014. Accordingly, the applicant must have known at that time that she would be unable to attend the hearing, but did not take any steps to advise the Tribunal until November 27, 2014, some four months later. The respondents also take the position that they are entitled to a hearing within a reasonable time, and would be prejudiced by the delay entailed in granting a further adjournment.

6I am sympathetic with the respondents’ concerns. It seems to me that the applicant would have been aware of her inability to attend the January 2015 hearing at a much earlier time, yet failed to take any timely steps to so inform either the Tribunal or the respondents. I also am aware that this is the second time that the applicant has sought to adjourn this matter.

7Having said that, I am reluctant at this time to deny the adjournment, which would effectively put the applicant’s rights to an end. Further, while it certainly would have been preferable for this matter to have been dealt with at a much earlier time, I am cognizant that the events at issue in this proceeding took place in the spring and summer of 2013, such that a hearing held in the summer of 2015 would only be two years after the events. In these circumstances, I am prepared to grant one final adjournment to the applicant, with the hearing to be re-scheduled for the earliest available dates following July 31, 2015.

ORDER

8For the foregoing reasons, I hereby make the following order:

a. The applicant’s request for an adjournment is granted and the hearing dates currently scheduled for January 20 to 22, 2015 are hereby cancelled; and

b. The hearing in this matter is to be re-scheduled for the earliest available dates following July 31, 2015.