Stark v. Toyota Motor Manufacturing Canada Inc., 2015 HRTO 246

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tracy Stark

Applicant

-and-

Toyota Motor Manufacturing Canada Inc.

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: February 27, 2015

Citation: 2015 HRTO 246

Indexed as: Stark v. Toyota Motor Manufacturing Canada Inc.

introduction

1A hearing in respect of this Application is scheduled for March 16, 2015 in London.

2On February 25, 2015 in response to the Tribunal’s February 19, 2015 Case Assessment Direction (“CAD”) that alerted the applicant to the fact that she had missed the deadlines for filing hearing documents, the applicant requested an adjournment of the hearing.

3The applicant advised the Tribunal she recently had discovered the missed deadlines, was no longer represented and felt she required representation, and was to see her doctors (witnesses) next week. She stated she does not have access to the hearing documents because her former representative will not release them to her. She also referred to “recent events regarding representation and current mental health issues”.

4The respondent objected to the adjournment request stating delay would be prejudicial given the applicant’s requested remedy of reinstatement and back wages. The respondent advised it would provide the applicant with copies of the pleadings, witness statements and documents. Further, the respondent submitted the hearing should not be adjourned so the applicant can retain a representative given that she was represented up until very recently and could have remained represented.

ADJOURNMENT

5The Tribunal’s Practice Direction on Scheduling states as follows about adjournment requests:

The HRTO discourages requests for adjournment outside the 14-day period to request rescheduling of a mediation or hearing, described above. Requests for adjournment, 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.

Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. They must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing.

The party making the request should contact the Registrar and provide the exceptional circumstances supporting the request and any alternative agreed upon dates. When the request is on short notice, the party must contact the Registrar by email or fax.

6As set out in the Practice Direction, and as confirmed in the Tribunal’s decisions, adjournments are only granted in exceptional circumstances. The Tribunal has explained its rationale for taking such positions in a number of cases including Vallentyne v. Royal Canadian Legion, 2009 HRTO 660. At para. 4, 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 proceedings must consider, but the fact that Tribunal time reserved for the resolution of those parties’ disputes 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 [now fourteen] days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of the parties in having hearings scheduled according to their and counsel’s availability with these broader interests by requiring that a party advise within five [now fourteen] days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

7In this case, while the applicant is no longer represented and wishes to have representation, this is not a reason to adjourn a hearing. The Notice of Hearing was sent out on October 16, 2014 and the applicant was represented until February 19, 2015. The applicant has had ample time to prepare for the hearing.

8In addition, although the applicant refers to current mental health issues, she has provided no medical documentation to support an inability to participate in the hearing.

9The Tribunal succinctly set out the reason why not all adjournments can be granted in Mohammad-Zadeh v. Davis Henderson Limited Partnership by its general partner Davis Henderson G.P. Inc., 2013 HRTO 894, as follows:

What 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 by applicants shortly before hearings in circumstances very 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.

10I am sympathetic to the applicant’s position, but I do not see her request as constituting exceptional circumstances and it does not warrant the hearing being adjourned. Accordingly, the applicant’s request for adjournment is denied.

decision and next steps

11The applicant’s request for an adjournment is denied.

12The respondent shall deliver to the applicant by no later than March 4, 2015 a copy of the pleadings, witness statements and documents in this matter.

13Because the applicant to date has failed to comply with her Rules 16 and 17 disclosure obligations, if the applicant does not comply by March 6, 2015, she will not be allowed to call witnesses and/or rely on any documentation at the hearing.