Faulkner v. Lakeridge Health, 2015 HRTO 1540

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandra Faulkner

Applicant

-and-

Lakeridge Health

Respondent

-and-

Ontario Public Service Employees Union

Intervenor

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: November 16, 2015

Citation: 2015 HRTO 1540

Indexed As: Faulkner v. Lakeridge Health

WRITTEN SUBMISSIONS

Lakeridge Health, Respondent

Shane Smith, Counsel

Introduction

1This Interim Decision addresses the respondent’s request for an adjournment.

2The hearing in this matter is scheduled for November 18-19, 2015. On Friday November 13, 2015, the respondent requested an adjournment of the hearing. The respondent’s counsel indicated that the respondent was willing to take part in a mediation-adjudication on November 18, 2015 but that it was requesting an adjournment of the hearing. The respondent’s counsel provided the two following reasons for the adjournment request: (1) to permit the respondent to provide the pre-hearing disclosure materials that it has not provided to date and (2) because one of the important witnesses that the respondent intends to call is not able to attend the scheduled hearing dates due to a medical issue.

3The respondent indicated that both the applicant and the intervenor consented to the adjournment request.

4The circumstances described by the respondent do not amount to the kind of extraordinary circumstances that would normally warrant an adjournment. However, for the reasons set out below, I have decided to grant the adjournment request in the particular circumstances of this case.

Analysis and findings

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”.

6In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, the Tribunal explained why, even when there is consent, an adjournment of a scheduled hearing will not be granted absent exceptional circumstances:

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 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 these broader interests by requiring that a party advise within five days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

7What may not be readily apparent to parties is that every adjournment causes a loss of hearing days which not only affects the Tribunal but also affects other parties who must wait longer to have applications heard. The Tribunal receives numerous requests for adjournments shortly before hearings in circumstances similar to those in the present case. If all of these adjournment requests were granted, parties to applications would have to wait considerably longer to have applications heard and decided by the Tribunal. This would lead to a gradual decline in the effectiveness of human rights adjudication and enforcement in the province over time.

8As noted above, the reasons provided by the respondent would not justify an adjournment in this case.

9First, the fact that the respondent has failed to comply with its pre-hearing disclosure obligations is not a reason to grant an adjournment. That is particularly so in this case. The Notice of the Hearing in this case set October 5, 2015 as the deadline by which the parties were required to make the pre-hearing disclosure required under Rules 16 and 17 of the Tribunal’s Rules of Procedure (“Rules”). By Case Assessment Direction (“CAD”) dated October 8, 2015, I alerted the parties to the fact that they had both failed to make the required disclosure and directed them to do so within 7 days of the CAD. The applicant made her pre-hearing disclosure after receiving the CAD. The respondent did not.

10I issued a second CAD on October 27, 2015 in which I noted the respondent’s failure to make the required disclosure. I advised the respondent of the potential consequences of failing to make the required disclosure under the Tribunal’s Rules. I provided the respondent with an additional 7 days to make the disclosure that was due on October 5, 2015. The respondent did not make the required disclosure and failed to communicate with the Tribunal in any way in response to my CAD.

11I issued a third CAD on November 5, 2015 advising the parties that I expected them to make submissions at the outset of the hearing as to whether the respondent should be permitted to present any witnesses or documentation at the hearing. Rules 16.4 and 17.4 provide that a party who fails to make the required pre-hearing disclosure in accordance with the Rules may not present any witnesses or documents except with permission of the Tribunal.

12On November 11, 2015, the respondent’s counsel e-mailed the Tribunal and attributed his failure to respond to the CADs to an alleged misunderstanding with his assistant. In the circumstances described above, I find that the respondent’s counsel had ample opportunity to make the necessary pre-hearing disclosure. His failure to do so is not an “extraordinary circumstance” that would justify an adjournment of the hearing.

13Second, the illness of one of the respondent’s witnesses would also not justify an adjournment in the circumstances of this case. Following the Tribunal’s usual hearing process, the applicant will proceed to give her evidence first at the hearing. She will then be cross-examined and then she will call her other witnesses before the respondent calls its witnesses in the case. The two upcoming hearing days would have been taken up with the evidence of the applicant and her witnesses. Therefore, the illness of one of the respondent’s witnesses does not justify an adjournment.

14Despite all of the above, I have decided to grant an adjournment in this case due to the prejudice that would be caused to the applicant from the respondent’s failure to make the required pre-hearing disclosure in this case. This case raises the issue of whether the respondent met its duty to accommodate the applicant. The applicant is entitled to have notice of the documents on which the respondent intends to rely and notice of what the respondent’s witnesses are expected to say in their evidence. That is precisely one of the things that the pre-hearing disclosure obligations contained in the Tribunal’s Rules are intended to do – ensure that each party is able to fully understand the other side’s case. I note that the pre-hearing disclosure obligations contained in the Rules also ensure that the Vice-chair assigned to the Application is fully apprised of each party’s case and therefore able to more effectively case manage the hearing and prepare for any mediation-adjudication.

15In the above circumstances, I find that an adjournment is appropriate out of fairness to the applicant in this case.

order

16The hearing date scheduled for November 19, 2015 is adjourned. However, I will engage in a mediation-adjudication with the parties on November 18, 2015 with the aim of resolving this Application. If the mediation-adjudication is not successful, I will discuss case management issues with the parties including: the level of detail that will be required in the parties’ witness statements to compensate for the hearing day lost due to the adjournment, the applicant’s request to amend her Application, the witnesses the applicant will be permitted to call in light of her various requests for summonses, and any other case management issues that must be addressed before the hearing of this matter.