Mitchell v. Money Direct Financial Services, 2015 HRTO 154

Human Rights Tribunal of Ontario

Between:

Lisa Mitchell Applicant

-and-

Money Direct Financial Services Inc. and Marlene Campbell Respondents

Decision

Adjudicator: Brian Eyolfson Date: February 2, 2015 Citation: 2015 HRTO 154 Indexed as: Mitchell v. Money Direct Financial Services

Appearances

Lisa Mitchell, Applicant No one appearing

Money Direct Financial Services Inc. and Marlene Campbell, Respondents Robert W. Whitmore, Counsel

Introduction

1This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on November 19, 2013. The Application was scheduled to be heard by the Tribunal on January 16, 2015, in Toronto.

2The applicant did not attend the hearing, but filed correspondence requesting that the hearing be adjourned and rescheduled. This Decision denies the applicant's adjournment request, and dismisses the Application.

Background

3By Notice of Hearing dated September 11, 2014, the Tribunal notified the parties that a hearing in this matter was scheduled for January 16, 2015 in Toronto.

4In correspondence dated December 29, 2014, the applicant requested that the hearing be conducted by teleconference. She indicated that she started a new job in British Columbia in November 2014. She submitted, among other things, that her financial situation did not allow her to purchase a return flight to attend the hearing in person.

5By correspondence dated January 7, 2015, the respondents opposed the applicant's request. The respondents submitted, among other things, that the Tribunal would be required to determine important issues of credibility in this matter.

6In Interim Decision, 2015 HRTO 28, dated January 8, 2015, the Tribunal determined that the applicant's presence at the hearing was necessary in order for the Tribunal to fairly assess the credibility of the witnesses, and appropriately deal with the parties' documentary evidence. The applicant's request that she be permitted to participate in the hearing by teleconference was denied.

The Applicant's Request

7At the outset of the hearing on January 16, 2015, the respondents were in attendance, but the applicant was not.

8By email correspondence dated January 15, 2015, sent at 11:11 p.m., the applicant indicated that she could not attend the hearing on January 16, 2015. The applicant asked if the hearing could be rescheduled for a month or two later, if at all possible. She submitted, among other things, that if she could have taken time off work, she would have, and that she does not have the financial means to travel from British Columbia to Ontario. The applicant also submitted that she would be more established in a couple of months, and she asked to have an opportunity to save money for a flight to attend the hearing.

9At the hearing on the morning of January 16, 2015, the respondents indicated that they were opposed to the applicant's adjournment request. They submitted that the applicant commenced this proceeding, and that the hearing had been scheduled for a long time. The respondents submitted that, when the applicant moved to British Columbia, she would have known that she would have to consider returning for the hearing.

10The respondents also submitted that the applicant was advised on January 8, 2015, that her request to participate by teleconference was denied, but that she did not request an adjournment until the night before the hearing. The respondents submitted that they were in attendance at the hearing and ready to proceed, with the individual respondent and two other witnesses available to give evidence. They submitted that the applicant could have made a request for an adjournment as soon as her request to participate by teleconference was denied, rather than waiting until late the evening before the hearing, causing the respondents much inconvenience, and costs in terms of legal fees and time.

Decision

11On September 11, 2014, the Tribunal issued a Notice of Hearing in this matter, indicating that the Application was scheduled to be heard on January 16, 2015. The Notice of Hearing informed the parties that requests for adjournments would be dealt with in accordance with the Tribunal's Practice Direction on Scheduling. Both the Notice of Hearing, and the Practice Direction, explain that requests to reschedule a hearing must be made within 14 days, and requests for adjournments thereafter will only be granted in exceptional or extraordinary circumstances.

12Pursuant to Rule 1.19 of the Tribunal's Rules of Procedure, the applicant's adjournment request, which was made by email after 5:00 p.m. on January 15, 2015, is deemed to have been received the following day, on the day of the hearing.

13The Tribunal's approach to late adjournment requests was set out in Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 4:

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 adjournment requests made on consent of the parties more than five days [now 14 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 those broader interests by requiring that a party advise within five days [now 14 days] that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

14In support of her request for an adjournment, the applicant explains her financial situation, and states that if she could have taken time off work she would have. I also note that, in support of her earlier request to participate by teleconference, the applicant explained that she moved to British Columbia and started a new job in November 2014. She submitted that she was not stable enough in her position to request time off work.

15In many cases, the Tribunal has held that the fact that a party is scheduled to work is not an extraordinary circumstance warranting an adjournment of the hearing: Gagné v. Algoma University, 2011 HRTO 554; Sampson v. Johnson Controls, 2009 HRTO 1684; Cohen v. Synergex Corporation, 2013 HRTO 234; and, Sangineto v. BridgeCo Foods Inc., 2014 HRTO 1554. Moreover, the applicant in the present case has not clearly indicated whether or not she actually attempted to take time off work to attend the hearing. Accordingly, I find that this is not an appropriate basis upon which to grant an adjournment of the hearing.

16I also find that, in the particular circumstances of this case, the applicant's assertion that she cannot afford to travel to attend the hearing does not amount to an exceptional or extraordinary circumstance that would justify adjourning the hearing. The applicant commenced the Application. The January 16, 2015 hearing date was confirmed by Notice of Hearing to the parties dated September 11, 2014. It appears from the Tribunal's file that the applicant moved to British Columbia some time prior to July 24, 2014, when the applicant's former counsel provided an updated address for the applicant in British Columbia. As such, the applicant would have been aware at the time she received the Tribunal's September 11, 2014 Notice of Hearing that she would have to travel to Toronto for the hearing on January 16, 2015.

17The Tribunal's Practice Direction on Scheduling also states that, where a party seeks to adjourn a previously scheduled hearing, they must contact the Tribunal as soon as the need arises. While the applicant first requested that she be permitted to participate in the hearing by teleconference, she did not make that request until late on December 29, 2014, well after she had relocated to British Columbia. When that request was denied by Interim Decision dated January 8, 2014, the applicant did not advise the respondents and the Tribunal that she would not be in attendance at the hearing, and request an adjournment, until very late the evening before the January 16, 2015 hearing date.

18The Tribunal has a duty to dispose of applications fairly, justly and expeditiously, and this duty exists not only in relation to applicants, but also in relation to respondents, who may expend significant resources responding to human rights applications. See Rule A3.1(a) of Social Justice Tribunals Ontario Common Rules found in Part I of the Tribunal's Rules of Procedure.

19In the present case, the respondents were in attendance at the hearing on January 16, 2015, represented by counsel, and ready to proceed with their evidence. In all of the circumstances, I do not find that it would be fair, just and expeditious to grant the applicant's adjournment request. The applicant had ample notice of the scheduled hearing date, and did not advise the respondents and the Tribunal in a timely manner that she had an issue with attending the scheduled hearing. Rather, the applicant ultimately advised the respondents and the Tribunal that she would not be attending the hearing, and requested an adjournment, the night before the hearing. The request is denied.

20As the applicant did not attend the hearing to present her case, the Application is also dismissed.