Myers v. William Osler Health System, 2015 HRTO 1407

Human Rights Tribunal of Ontario

BETWEEN:

Tara Myers Applicant

-and-

William Osler Health System and Laura Albisu Respondents

-and-

Teamsters Union Local Union No. 419 Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend Date: October 21, 2015 Citation: 2015 HRTO 1407 Indexed as: Myers v. William Osler Health System

1A hearing in respect of this Application is scheduled for November 4 and 5, 2015 in Toronto. The applicant has made a request for an adjournment of these dates and the respondents have requested a copy of the applicant’s documents in a tabbed book of documents.

Decision

Adjournment

2On October 19, 2015, the applicant’s newly retained representative sent in a request to adjourn these dates. The respondents filed a letter in response opposing this request.

3The hearing was originally scheduled for July 23 and 24, 2015. The applicant had requested an adjournment of the July hearing dates, by way of a Request for an Order During Proceedings filed on July 9, 2015 and a second Request filed on July 16, 2015. The basis for the request was the late disclosure of the respondent’s hearing documents. This request was denied in a Case Assessment Direction dated July 20, 2015.

4The applicant renewed her request for an adjournment, by way of an email dated July 21, 2015. The applicant set out a number of reasons why she felt this was necessary, including that she was “in the process of attaining new representation” as she felt her prior representative had not properly represented her. In a follow-up email sent July 22, 2015, the applicant stated:

I am requesting an adjournment for the hearing for July 23 and 24, 2015.

I have found new representation however unless I get an adjournment they will not be able prepare for my hearing which will undermine the right to a fair hearing where the facts not strategy allows for a fair and just hearing.

In fairness please grant this adjournment so justice can be served.

5The hearing commenced on the first of those two dates, but no evidence was heard because it was discovered shortly before the hearing that the respondents had not filed a substantive Response (Form 2) to the Application. I would note that, although the substantive Response had not been filed, Counsel for the respondent had filed a lengthy overview/narrative statement, detailed witness statements and a book of documents on June 25, 2015, which mirrors the factual response in the Form 2 subsequently filed by the respondents.

6At the July 23, 2015 hearing, a number of procedural issues were addressed and new hearing dates were scheduled for November 4 and 5, 2015. As the applicant was unrepresented at that time, I impressed upon her the need to ensure that her new representative (who was not identified) was available.

7It would appear, however, that the applicant did not follow through on the retainer for the representative she had found on or before July 22, 2015. It was the applicant, not her representative, who sent in the Request for an Order During Proceedings (Form 10) to amend her Application on August 20, 2015 (in compliance with the direction given at the July 23, 2015 hearing). Moreover, the applicant wrote a letter, dated October 16, 2015 (sent via email on October 19, 2015), in which she states: “This is to inform you that I have retained the services of Mr. Ian Gardner with immediate effect.” There is no explanation for the almost three-month delay in retaining representation.

8In the same October 19, 2015 email, a letter from Mr. Gardner is enclosed, requesting an adjournment of the November 4 and 5, 2015 hearing. The basis for the request is as follows:

1. He requires time to review the file in detail;
2. His client would want to summons witnesses; and
3. His client requires “all handwritten notes sent to her” to be transcribed.

9The 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 Notice of Hearing and that thereafter, adjournments will be granted only in extraordinary circumstances. The Practice Direction states, in part, as follows:

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a mediation or 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. [Emphasis added.]

10Last minute retention of counsel does not constitute exceptional circumstances. In addition, there is no explanation for why witnesses who need to be summonsed have not been or, for that matter, cannot be summonsed in the time remaining. The applicant has been in possession of the allegedly illegible handwritten documents for close to four months. She has done nothing about her inability to read the documents in the intervening period. Specifically, no attempt has been made to identify which documents are problematic and no request for transcription has been made to the respondents.

11The applicant’s tardiness cannot be used as a basis for an adjournment.

Applicant’s Document Book

12In addition, Counsel for the respondents correctly points out that at the hearing on July 23, 2015, the applicant was directed to provide a tabbed copy of her documents to the respondents. Counsel indicates that she has still not received these documents.

13This must be done on or before October 28, 2015, and a copy of this book filed with the Tribunal.

Order

14For the reasons set out above, I make the following orders:

a. The applicant’s request for an adjournment of the November 4, and 5, 2015 hearing dates is denied; and

b. The applicant must deliver a copy of her book of documents to the respondents’ Counsel and the Tribunal on or before October 28, 2015. This book must contain an index and sequentially numbered tabs for each document.