Kuntal Pathak v. Johnson Controls Manufacturing, 2015 HRTO 1506

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kuntal Pathak

Applicant

-and-

Johnson Controls Manufacturing

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: November 9, 2015

Citation: 2015 HRTO 1506

Indexed as: Pathak v. Johnson Controls Manufacturing

1This Application alleges discrimination with respect to employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The hearing of this case is scheduled to begin on December 8 and 9, 2015 in Toronto. The Notice of Hearing was issued on July 22, 2015.

3On November 4, 2015 the respondent requested an adjournment of the case because a witness with evidence central to the issues in dispute in the case has been called away on important business of the respondent and will not be in the country on the hearing dates currently scheduled.

4The applicant opposes the request but offered the possibility that a third day of hearing be scheduled to hear this witness’s evidence.

5The Requests to adjourn the hearing is denied

6The Tribunal’s Practice Direction provides that requests to reschedule must be made within 14 days of receiving the Notice of Hearing and that thereafter, adjournment will be granted only in extraordinary circumstances. The Practice Direction states the following regarding requests for adjournments:

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.

7In my view the respondent’s request does not constitute an exceptional circumstance as contemplated by the Practice Direction. The respondent argues that the witness is their key witness. Having reviewed the materials I accept that characterization. However I would also observe that the individual in question is not a party to the proceeding and is not entitled to be present throughout the hearing. It can be anticipated that this individual would advise counsel but given the nature of the respondent I am not satisfied that counsel can not receive instructions from another official of the respondent. I appreciate that it is not ideal that this witness not be present for the evidence of the applicant but there are steps that can be taken to mitigate the consequences for the respondent’s presentation of their case.

8In my view the applicant’s proposal that a further day be scheduled for this witness is the more fair, just and expeditious resolution to the parties’ dilemma. The scheduling of a further date, if necessary, will be dealt with at the hearing.

9For these reasons the adjournment request is denied.

10I am not seized of this case.