Pitzschel v. Helrit Investments, 2015 HRTO 1436

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Monika Pitzschel

Applicant

-and-

Helrit Investments o/a Trevi Investments Ltd.

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: October 27, 2015

Citation: 2015 HRTO 1436

Indexed as: Pitzschel v. Helrit Investments

APPEARANCES

Monika Pitzschel, Applicant

Brenda Culbert, Counsel

Helrit Investments o/a Trevi Investments Ltd., Respondent

John Sedrak, Counsel

1The applicant in this matter filed a previous Application (2013-15732-I) which was resolved pursuant to Minutes of Settlement signed by the parties on June 26, 2014. The applicant alleges that the respondent contravened that settlement, and filed this Application under s.45.9(3) the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Interim Decision provides written reasons for granting an adjournment at the hearing of this Application on October 26, 2015.

adjournment

3At the hearing of this Application on October 26, 2015, the first hearing date of May 1, 2015 having been postponed to accommodate the respondent’s counsel’s health, the respondent’s counsel appeared without any instructing client or witness. He explained that he had not received any document from the Tribunal or the applicant which would have led him to understand that the day was meant to address evidence. He had wrongly assumed that the day was scheduled to resolve the matter without evidence. He asked for an adjournment as he was not prepared to proceed with the hearing. The applicant opposed the request to adjourn, and was ready to proceed.

4There are three sets of documents in particular which would have alerted the respondent’s counsel to the true nature of the hearing. One was a letter from the Registrar dated November 27, 2014, which was sent to the respondent’s counsel by regular mail to the address set out in the Response. He said at the hearing that he did not receive it.

5The second set of documents was the “Disclosure of Documents of the Applicant (Rule 16.2)” that the applicant faxed to the respondent’s counsel on April 10, 2015. The respondent’s counsel pointed out that the fax number used was not the fax number he provided on the Response, which is the same fax number that he provides under his signature on all his correspondence. Instead, the applicant used the fax number indicated in the Law Society’s records which the respondent’s counsel says is no longer valid. The applicant’s counsel argued that the respondent’s counsel had used that fax number to send documents to her, but the respondent’s counsel insisted that the fax number which would ensure he received documents was the one listed in the Response and on his signature line of correspondence.

6The third document which would have alerted the respondent’s counsel to the evidentiary nature of the hearing was a Case Assessment Direction dated April 22, 2015 (“the CAD”). It stated:

This Contravention of Settlement Application is scheduled to be heard on May 1, 2015. The applicant has filed a witness statement and documents upon which she intends to rely at the hearing. If the respondent intends to call any evidence at the hearing, it must deliver to the applicant and file at the Tribunal, by April 28, 2015, a summary of what its witness(es) will say, and copies of documents upon which it intends to rely.

7The CAD was emailed and faxed to the respondent’s counsel. He explained that he did not receive it. While he confirmed that the email address used was valid, he could not find the email on his hand-held device that he relied upon at the hearing, and he could not remember having received it. With respect to the copy of the CAD that was faxed, he pointed out that it also was not faxed to the valid fax number listed in the Response and in all his correspondence, and he said that he did not receive it.

8The respondent’s counsel also explained that he did not have with him at the hearing either of the “Notices of Hearing - Contravention of Settlement” sent by regular mail, and could not remember if he had received them. I noted that those Notices did not contain any indication that evidence would be adduced at the hearing, so that even if the respondent had received them, they would not have been as instructive about the evidentiary nature of the hearing as the above three sets of documents.

9In the circumstances, I decided that it was possible that the respondent had not received notice of the evidentiary nature of the hearing. To ensure fairness to the respondent, I granted the adjournment request, and canvassed the parties for mutually agreeable dates. They agreed to January 5 and 6, 2016, and I made them peremptory to the respondent. The respondent’s counsel also agreed upon the following conditions for the granting of the adjournment request, and I directed that the respondent comply with the conditions:

1. By November 27, 2015, the respondent must file with the Tribunal and deliver to the applicant its documents upon which it intends to rely at the hearing, its witness list and a summary of exactly what the respondent anticipates each of its witnesses to say.

2. By the end of October 26, 2015, the respondent must notify the Registrar of the Tribunal in writing of its correct contact information, and notify the Registrar in writing of any change to that information or change of representation within seven (7) days of any change, delivering copies to the applicant.

3. The respondent must immediately request the Registrar to provide a complete record of the file.

4. The respondent must bring to the hearing paper copies of each document in the file for the respondent’s representative to use at the hearing.

directions and next steps

10The respondent must comply with the above conditions as agreed to by its counsel. If the respondent does not provide the above-noted materials by November 27, 2015, the Tribunal may take any or all of the steps set out in Rule 5 of the Tribunal’s Rules of Procedure, including not permitting the respondent to call any witnesses or present any documentary evidence at the hearing. If the respondent does not comply with the other conditions, then the respondent will be deemed to have received all documents sent pursuant its contact information on the Tribunal’s record, whether or not that contact information has changed, and regardless of whether the respondent can locate the documents in its office or email records.

11The respondent must confirm with the Tribunal its legal name by November 27, 2015.

12The applicant must file any additional documents or witness statements by December 4, 2015.

13The Tribunal will deliver this Interim Decision to the parties’ contact information indicated in their pleadings. In particular, the Tribunal will deliver this Interim Decision to the respondent’s counsel by email, regular mail and by fax, using the fax number provided in the Response, not the fax number the Tribunal has previously used.

14The Tribunal will send a Confirmation of Rescheduled Hearing - Contravention of Settlement, noting the January 5 and 6, 2016 hearing dates now scheduled, and noting the deadlines confirmed in this Interim Decision.

15I am seized.