Esther Shefer v. Laura Shoppe P.V., 2014 HRTO 273

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Esther Shefer

Applicant

-and-

Laura Shoppe P.V.

Respondent

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: February 28, 2014

Citation: 2014 HRTO 273

Indexed as: Shefer v. Laura Shoppe P.V.

WRITTEN SUBMISSIONS

Esther Shefer, Applicant

Karen Zvulony, Counsel

Laura Shoppe P.V., Respondent

Michelle Henry, Counsel

1This is an Application filed on April 17, 2013, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of age. The Application is scheduled for hearing on March 27 and 28, 2014. This Interim Decision addresses the respondent’s request to adjourn the hearing.

2The request for an adjournment is related to the retaining of new counsel. On February 21, 2014, respondent counsel wrote to the Tribunal making the request on the basis that the matter was only transferred to her following the wind down of the operations of another law firm during the week she made the request. Counsel states that she was unable to comply with the pre-hearing disclosure requirements but is now in the process of obtaining the file from previous counsel and intends to produce the documents in short order. The respondent asks that the hearing be adjourned but states that it is available for mediation on March 27, 2014.

3On February 25, 2014, the applicant wrote to the Tribunal opposing the adjournment. Among other things, the applicant states that the hearing is at least five weeks away from the date of counsel’s retainer and that this ought to be sufficient time for counsel to familiarize herself and prepare for hearing.

4On February 26, 2014, the respondent filed its hearing documents and witness statements.

Decision

5The request to adjourn the hearing is denied.

6The Notice of Hearing was issued on September 19, 2013. The Notice states that requests for rescheduling and adjournments will be dealt with in accordance with the Tribunal’s Practice Direction on Scheduling. In addition, the Notice states:

If you cannot attend the hearing on the date(s) scheduled, you must act within 14 days of this Notice to arrange for rescheduling. After that, a hearing will be adjourned or rescheduled only in exceptional circumstances. Retaining a new representative who is not available or prepared to proceed on the scheduled date is normally not considered an exceptional circumstance. [emphasis added]

7In the Tribunal’s case law, change of counsel or a decision to retain counsel has not generally been recognized as an extraordinary circumstance justifying an adjournment: see, for example, Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, and Leone v. Solie, 2010 HRTO 855.

8Moreover, in the circumstances of this case, the respondent’s new counsel has not said that she unavailable on the dates in question and has now filed the respondent’s disclosure. I agree with the applicant’s submission that the hearing is several weeks away and that there ought to be sufficient time for counsel to prepare for the hearing. Further, having reviewed the material filed, it would appear that the issues in the case are straightforward (with the applicant alleging that her status was changed to part-time because of age and the respondent alleging that it was due to performance and business needs).

9The request for an adjournment is denied. The hearing will proceed as scheduled on March 27 and 28, 2014.

10A copy of the Tribunal’s Mediation/Adjudication Agreement is attached to this Interim Decision should the parties wish to participate in this process at the hearing.