Stone v. United Brotherhood of Carpenters and Joiners of America, 2014 HRTO 414

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stephen Stone

Applicant

-and-

United Brotherhood of Carpenters and Joiners of America, Millwrights Local 1592 and CFJ Nuclear Contractors

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: March 24, 2014

Citation: 2014 HRTO 414

Indexed as: Stone v. United Brotherhood of Carpenters and Joiners of America

APPEARANCES

Stephen Stone, Applicant Self-represented

Millwright Regional Council of Ontario, Local 1592, Respondent Meg Atkinson, Counsel

CFJ Nuclear Contractors Ltd., Respondent Daniel McDonald, Counsel

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 disability and reprisal or threat of reprisal. The hearing of this matter is scheduled for April 14, 15 and 16, 2014 in London Ontario.

2This Interim Decision addresses a request to adjourn the first two days of the hearing from the respondent Millwright Regional Council of Ontario, Local 1592 (the “union”) and a request for procedural directions regarding the order of proceedings from the respondent CFJ Nuclear Contractors Ltd. (“CFJ”).

The Union’s Request

3On March 4, 2014, counsel for the union filed a letter requesting that the Tribunal adjourn the hearing dates on April 14 and 15, 2014. Counsel explained that it recently became necessary to transfer the litigation of this matter to different counsel within the firm representing the union, but the firm has no appropriate counsel available on more than one of the three dates. Counsel acknowledged that the request is unusual and regrettable given it comes shortly before the hearing dates, but submitted that solicitor-client privilege prevented a more detailed explanation. Both the applicant and CFJ consent to the request.

Analysis and Decision

4For the reasons that follow, the request to adjourn is denied.

5The 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 regardless of the consent of the other parties. 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.

6The Tribunal has consistently refused to grant adjournment requests where a party retains counsel shortly before a hearing and has expressed the expectation that counsel retained after a notice of hearing has been issued will be available on the dates previously scheduled. See for example, Vallentyne, above, Riad v. Ontario (Attorney General), 2013 HRTO 1370 and Simone v. Amazing Custom Fabricators Inc., 2013 HRTO 285. In my view, this analysis applies equally to circumstances, such as this one, where a party chooses to change its representation, i.e., the new representative must be available for the scheduled dates. The union was of course entitled to change its counsel, but the fact that its new counsel is not available for the previously scheduled hearing dates does not amount an exceptional or extraordinary circumstance.

CFJ’s Request

7CFJ filed a Request for an Order During Proceedings in which it requested an order requiring the union to a) proceed first with any cross-examination of the Applicant and his witnesses; and b) call its case before CFJ. CFJ submits that it expects to call present five witnesses during the hearing, none of whom are employees of CFJ. CFJ submits that several of its expected witnesses are currently employed on construction projects in western Canada and/or in other regions of Ontario distant from London. CFJ submits that these witnesses should not be compelled to attend at the Tribunal when it is uncertain when or if they will be required to testify. CFJ submits that the union’s expected witness lives in the London area and faces no special hardship in attending the hearing. CFJ submits that the witness statements provided by the applicant and union indicate that CFJ’s witnesses may not be necessary. CFJ also submits that the allegations against the union precede the allegations against CFJ and that the union will suffer no prejudice if it proceeds before CFJ.

8The union filed a Response to a Request for an Order in which it opposes CFJ’s request. The union submits that the applicant’s central allegation is that his lay-off from employment violated the Code and that CFJ, the employer, made the decision to lay-off the applicant and is the party with knowledge of the work involved and the physical demands the work required. The union submits that the applicant’s expected evidence appears to relate to the project in question and the physical demands of the work, which relates to the allegations against CFJ, not the union. Accordingly, the union submits that CFJ is best situated to lead cross-examination of the evidence. The union submits that the factual chronology of the applicant’s narrative alternates between the respondents and, in any event, the union’s involvement is brief.

9The union submits that it appreciates that calling witnesses who live in different parts of the country may be inconvenient and costly, but submits that it is a reality of litigation. The union submits that its witness does not live in London and will also be required to travel. The union submits that the parties could confer and agree, for example, that each respondent’s witnesses will not be required on the first day of hearing. The union submits that the logistical issues that CFJ raises are irrelevant to the proper order of proceedings.

10The applicant also filed a Response to a Request for an Order in which he opposes CFJ’s request. The applicant’s main concern appears to be the suggestion that CFJ may not call some or all of its witnesses. The applicant identifies one of CFJ’s expected witnesses, Heather Baker, an Occupational Health Nurse, as particularly important to his case because he expects that she will make certain admissions in cross-examination.

Analysis and Decision

11I do not accept the union’s submission that logistical issues are irrelevant to the order of proceedings. Scheduling witnesses, particularly those that must travel, is a valid practical issue and it is reasonable for CFJ to try to avoid, if possible, having witnesses having to travel long distances to attend a hearing only to find that their testimony is not required or that they must return on another day. The solution CFJ proposes does not, however, address this problem. Having the union call its witness first and cross-examine first will not add much clarity regarding when CFJ’s witnesses shall testify and it is not clear, on my reading of the witness statements, that the other parties will adduce the evidence CFJ expects from its own witnesses. The preferable solution, as the union submitted, is for the parties to confer and agree when witnesses will be required. Alternatively, the Tribunal can direct that particular witnesses will testify at a specified time, which may require the witnesses to give their testimony out of the typical order in a proceeding or the interruption of other witnesses, pursuant to Rules 1.7(j) and 1.7(w) of the Tribunal’s Rules of Procedure.

12The applicant’s concern about whether Ms. Baker will testify is understandable, but he may summons her to testify if he concludes, e.g., after conferring with CFJ’s counsel, that CFJ will not call her.

Order

13The Tribunal orders as follows:

1. The union’s request to adjourn the hearing dates on April 14 and 15, 2014 is denied;

2. CFJ shall confer with the other parties and attempt to agree when CFJ’s witnesses shall testify. If the parties are unable to agree on this issue by March 31, 2014, CFJ may request that the Tribunal specify when its witnesses who must travel significant distances to the hearing shall testify. Such request shall include the following information:

a. The name and place of residence of each such witness;

b. The date and time at which CFJ proposes for each such witness to testify; and,

c. An estimate of the length of each witness’ testimony in chief.