Khan v. 1742248 Ontario Inc., 2014 HRTO 86

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sachchu Khan

Applicant

-and-

1742248 Ontario Inc. O/A The Harbord Room, Cory Vittelo, Curt Martin and Phil Walters

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: January 21, 2014

Citation: 2014 HRTO 86

Indexed as: Khan v. 1742248 Ontario Inc.

APPEARANCES

Sachchu Khan, Applicant Self-represented

1742248 Ontario Inc. O/A The Harbord Room, Cory Vittelo,, Respondents Sunira Chaudhri, 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 place of origin, sex and sexual solicitation or advances. The Tribunal scheduled a hearing in respect of this Application on January 27 and 28, 2014 in Toronto of which the Tribunal notified the parties in a Notice of Hearing dated July 25, 2013.

2In an e-mail message dated January 16, 2014, the respondents requested an adjournment of the hearing. Respondent’s counsel advised that she was no longer able to appear on January 27, 2014. The Tribunal responded by e-mail the same day. The Tribunal acknowledged receipt of the respondents’ late request to reschedule the hearing and directed them to provide reasons for the request and also directed them to the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments.

3By e-mail message dated January 17, 2014, the applicant stated his opposition to respondent’s request for adjournment, submitting that the request comes on short notice and that the respondents have not provided adequate reasons for the request.

4By e-mail message dated January 20, 2014, counsel for the respondent advised that her calendar has been double booked and she is not able to appear for the entire day on January 27, 2014. Counsel submitted that she could potentially have alternate counsel take her place but this could prejudice her client given the impending hearing date and the bulk of material to be presented. Counsel also advised that two of their key witnesses are not available to testify on the scheduled dates, as they will not be in the country.

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. Accordingly, the Tribunal grants adjournments sparingly.

6In my view, the circumstances described by the respondents do not amount to exceptional circumstances that warrant an adjournment. As noted above, the respondents have known of the hearing dates in this matter since July 25, 2013, i.e., six months. The respondents did not raise any concerns regarding the hearing dates when they received the Notice of Hearing, which indicates that they did not conflict with their schedules at the time. Counsel for the respondents indicates that her calendar “became double booked”, which indicates that the event conflicting with the hearing date on January 27, 2014 was scheduled after the hearing dates were set. The fact that counsel has double booked his or her schedule does not amount to an exceptional circumstance. See Alabi v. Cancer Care Ontario, 2010 HRTO 302 and Khardas v. Aiello, 2010 HRTO 599. Respondents’ counsel has in any event provided no explanation for how or when the conflict in her schedule arose or why she waited until shortly before the commencement of the hearing to raise this issue. Further, counsel for the respondent has not stated what the other event is on January 27, 2014 or why it should be afforded greater consideration than the hearing scheduled before this Tribunal.

7I would also note that the respondents have not stated who their witnesses will be, provided witness statements regarding the expected testimony of their witnesses or identified the documents on which they rely, despite being directed to do so by the Tribunal in a Case Assessment Direction dated December 20, 2013. Based on the material filed with the Tribunal thus far, however, the matter does not appear complex and should not require undue amounts of preparation should alternate counsel be required.

8Similarly, the respondents provided no explanation for why some of their key witnesses are out of the country despite the respondents being aware of the hearing dates for several months. The Tribunal has consistently held that unavailability of witnesses is not an extraordinary circumstance that would warrant re-scheduling of a hearing, particularly where a complete explanation has not been provided. See Khardas, above, Silk v. Matthews, 2012 HRTO 37, Pfeiffer v. Margaret Laurence Housing Co-operative, 2011 HRTO 2207 and Iqbal v. Inscape Corporation, 2009 HRTO 934.

Order

9The respondents request for an adjournment is denied.

10The parties should arrive at the hearing prepared to proceed with the entirety of their case. If the respondents’ witnesses are not present on January 27 or 28, 2014, the respondents must be prepared to make oral submissions regarding why the evidence of those witnesses is necessary and whether it is appropriate, in the circumstances, to hold an additional day of hearing. The applicant will also have an opportunity to make oral submissions on these issues.