Joseph v. Tenneco Canada Inc., 2014 HRTO 736

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Grezelda Joseph

Applicant

-and-

Tenneco Canada Inc.

Respondent

-and-

United Steel, Paper & Forestry, Rubber Manufacturing, Energy, Allied Industrial & Service Workers International Union Local 2894

Intervenor

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: May 22, 2014

Citation: 2014 HRTO 736

Indexed as: Joseph v. Tenneco Canada Inc.

Introduction

1This Application is filed under section 34 of Part IV 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.

2The respondent filed a Request for an Order During Proceedings (“RFOP”) on May 15, 2014, requesting an adjournment of the hearing scheduled for June 4, 5 & 6, 2014 because the applicant’s WSIB file has not been disclosed in its entirety. It submits that additional time is required to get the WSIB file.

3The intervenor supported the respondent’s request. The applicant objected to it.

4The Notice of Confirmation of Hearing in this matter was sent to the parties on December 3, 2013. Included in that notice was direction with respect to dates for disclosure pursuant to the Tribunal’s Rules of Procedure and direction regarding requests for adjournments. It noted that if a party seeks an adjournment, they are to do so within 14 days of the Notice of Confirmation of Hearing. It advised the parties that a hearing would only be adjourned or rescheduled in exceptional circumstances.

5The Tribunal’s Practice Direction on requests to adjourn or reschedule reads as follows:

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. They must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing.

The party making the request should contact the Registrar and provide the exceptional circumstances supporting the request and any alternative agreed upon dates. Where the request is on short notice, the party must contact the Registrar by email or fax.

6In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 4, the Tribunal explained why, even when there is consent, an adjournment of a scheduled hearing will not be granted absent exceptional circumstances:

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 adjournments 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.

7The respondent has not demonstrated any exceptional reasons for the requested adjournment.

8The respondent first raised an issue with respect to the disclosure of documents when it received the applicant’s arguably relevant documents in January, 2014. The respondent wrote to the applicant’s legal representative on January 20, 2014, and asserted that the applicant’s disclosure did not meet the requirements of Rule 16.1 of the Tribunal’s Rules of Procedure. On February 5, 2014, the applicant provided the respondent with a signed consent to disclose, which the respondent sent to WSIB by letter dated March 27, 2014 – a delay of seven weeks from the time the respondent received the applicant’s signed consent. Subsequently, the WSIB rejected the consent to disclose as insufficient in its correspondence dated April 7, 2014.

9On or about April 10, 2014, the applicant’s representative wrote to the WSIB to provide the applicant’s permission to release the WSIB file. The WSIB has not yet provided the file or corresponded with the respondent.

10The WSIB file may well be relevant to this matter, but the parties have had ample opportunity to obtain the file. The respondent knew as of January, 2014 that the applicant had not disclosed the entire WSIB file and apparently had no intention of doing so, although the applicant has voiced no objection to its being disclosed.

11As there are no exceptional circumstances that warrant the adjournment, the Tribunal denies the adjournment request.

12The parties shall continue to attempt to obtain the WSIB file prior to the hearing as it is at least arguably relevant to the issues. The parties can raise any continuing issues with respect to the disclosure at the outset of the hearing.

Order

13The request to adjourn the hearing dates set for June 4, 5 and 6, 2014 is denied.