HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Liudmila Gubrenko
Applicant
-and-
T.O.J. Empire Auto/2100011 Ontario Inc.,
Tony (Joseph, Anatoliy) Katz (Katez) and Olga Baranova
Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Gubrenko v. T.O.J. Empire Auto
APPEARANCES
Liudmila Gubrenko, Applicant
Self-represented
Tony (Joseph, Anatoliy) Katz (Katez) and Olga Baranova, Respondents
Judit Schonwald, Representative
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of sex, gender identity, gender expression, family status and marital status. The hearing of this matter is schedule for March 6 and 7, 2014.
Request for adjournment
2By e-mail message dated January 21, 2014, the respondents' representative indicated that he had been retained by the individual respondents, Tony (Joseph, Anatoliy) Katz and Olga Baranova and requested adjournment of the hearing because his client is seriously ill and requires surgery in February. The individual respondents' representative stated that the estimated recovery period after the surgery is six months. The applicant responded by e-mail on January 21, 2014, in which she stated her opposition to the request. The applicant submitted that the respondents had not met their pre-hearing disclosure obligations, pursuant to the Tribunal's Rules of Procedure (the "Rules") and that there are several respondents, not all of whom will be undergoing surgery. By e-mail dated January 21, 2014, the Tribunal directed the individual respondents to identify which of the individual respondents is ill and to provide medical documentation confirming that this person requires surgery and will not be able to attend the hearing on March 6 and 7, 2014.
3On January 27, 2014, the individual respondents' representative filed a brief note from the Ms. Baranova's family doctor. In the note, the doctor confirmed that the applicant has recently been diagnosed with a serious illness and will be undergoing surgery on February 19, 2014. The doctor noted that Ms. Baranova will require some time to recuperate after the surgery and to deal with the stress of the diagnosis. The doctor requested the Tribunal to consider rescheduling the hearing in four or five months. On February 7, 2014, the applicant provided further submissions regarding the request to adjourn the hearing. She again noted that there are three respondents to the Application and that the respondents have not complied with their obligations under Rules 16 and 17 of the Rules. The applicant also submitted that the medical information provided by the individual respondents is insufficient because it comes from Mr. Baranova's family doctor and there is no supporting documentation from a specialist confirming the referral to surgery.
4The Tribunal's Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments provides that requests to reschedule must be made within 14 days of receiving the Confirmation of Hearing and that outside that time adjournments will be granted only in extraordinary circumstances, such as illness of a party, witness or representative. Accordingly, the Tribunal grants adjournment sparingly. In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, The Tribunal stated at paragraph 4:
The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties' dispute will no longer be used. For that reason, among others, the Tribunal's Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments indicates that even adjournment requests made on consent of the parties more than five days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of parties in having hearings scheduled according to their and counsel's availability with these broader interests by requiring that a party advise within five days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.
5However, I am satisfied that an adjournment is justified in the circumstances presented by Ms. Baranova. Her doctor confirmed that she has been diagnosed with a very serious illness and requires surgery, which is in my view an extraordinary circumstance. The hearing is scheduled only two weeks after the surgery is to occur and I find it reasonable that Ms. Baranova would not be recovered sufficiently to participate in the hearing as currently scheduled. The fact that this medical information was confirmed Ms. Baranova's family doctor and not a specialist is not a proper basis for questioning its accuracy. Ms. Baranova is an individual respondent and is entitled to be present during the hearing of the Application and the fact that there are other respondents is irrelevant. Whether the respondents have complied with Rules 16 and 17 of the Rules is a separate issue (see below) and is not a reason to deny the adjournment request.
6I am not satisfied, however, on the medical evidence provided, that a four or five month adjournment is warranted. The note provided by Ms. Baranova' physician does provide any detail that would support the conclusion that she will be unable to participate in a hearing for such a lengthy period.
Rules 16 and 17
7Review of the Tribunal's file confirms the applicant's assertion that the respondents have not complied with any of their pre-hearing disclosure obligations, pursuant to Rules 16 and 17 and set out in the Notice of Hearing, dated September 3, 2014. The fact that the hearing shall be adjourned does not relieve them of these obligations.
Order
8The Tribunal orders as follows:
The parties are directed to provide their available dates for a hearing of this matter that are within 12 weeks of the originally scheduled hearing dates to the Registrar within 7 days of the date of this Interim Decision. The Tribunal shall thereafter send the parties a notice confirming the re-scheduled dates;
Within 21 days of this Interim Decision, the respondents must comply with Rule 16.1 by delivering to the applicant all arguably relevant documents in their possession and confirming such delivery with the Tribunal; and,
Within 21 days of this Interim Decision, the respondents must comply with Rules 16.2, 16.3, 17.1 and 17.2 by delivering to the applicant and filing with the Tribunal the documents they intend to rely upon at the hearing, a list of their witnesses and a detailed statement describing what their witnesses (including the individual respondents) will say when they testify.
If the respondents do not deliver and file the materials described in paragraphs 8(2) and 8(3), above, as directed, the Tribunal may take any or all of the steps set out in Rule 5 of the Tribunal's Rules of Procedure, including not permitting the respondents to call any witnesses or present any documentary evidence at the hearing.
Dated at Toronto, this 10th day of February, 2014.
"Signed By"
__________________________________
Douglas Sanderson
Vice-chair