Carol-Anne Russell v. Cosmedx Inc., 2015 HRTO 632

Human Rights Tribunal of Ontario

B E T W E E N:

Carol-Anne Russell

Applicant

-and-

Cosmedx Inc., D. Oliver Medicine Professional Corporation, JSN Inc., Steward Street Health and Dijana Oliver

Respondents

INTERIM DECISION

Adjudicator: Eli Fellman

Date: May 14, 2015

Citation: 2015 HRTO 632

Indexed as: Russell v. Cosmedx Inc.

WRITTEN SUBMISSIONS

Carol-Anne Russell, Applicant

Trueman Tuck, Paralegal

Cosmedx Inc., D. Oliver Medicine Professional Corporation, JSN Inc., Steward Street Health and Dijana Oliver,

Respondents

Carol Mackillop, Counsel

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

2This Application is scheduled for hearing on July 27-28, 2015 in Kingston.

3This Interim Decision addresses:

a. The respondents’ adjournment request;

b. The respondents’ request to file an Amended Response; and

c. The parties’ request to attempt to resolve the Application through mediation.

4On March 3, 2015 the personal respondent requested that the hearing be adjourned until a related criminal matter is resolved. The criminal matter may affect respondents’ arguably relevant documents.

5On April 17, 2015, the respondents’ counsel requested an extension of time to file submissions in the support of this request for an adjournment. Counsel states that she has only recently been retained and requires more time to prepare for a hearing. Counsel also note that there was a scheduled court appearance for the criminal matter on April 23, 2015.

6Counsel also requested the Tribunal’s consent to extend time to file an Amended Response, as the respondents were unrepresented at the time that the original Response was filed. Counsel was directed to make this request using a Form 10, Request for Order During Proceedings (“RFOP”).

7The applicant was directed to respond to the request for adjournment by May 1, 2015.

8The applicant opposes the adjournment on the grounds that the respondents have had ample time to prepare for the hearing and the criminal proceeding is not relevant to the issues raised in the Application and in any event the charges may have been withdrawn.

9The applicant consents to a two week adjournment on the condition that the applicant is then provided with a two week extension to file additional disclosure if necessary.

10In their submissions, both parties express willingness to attempt to resolve the Application through mediation.

ANALYSIS

ADJOURNMENT

11For the reasons that follow the adjournment request is denied.

12The Tribunal has made it clear on numerous occasions that adjournments are not automatically granted. The Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states:

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a mediation or 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 adjournment, even when all parties consent.

13In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 4, the Tribunal explained why 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 [now fourteen] 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 [now fourteen] days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

14I find that the respondents have not provided an exceptional reason to justify adjourning the hearing at this stage of the proceeding. This matter has been scheduled for a hearing since February 18, 2015. The respondents have therefore been provided with adequate time to retain counsel and prepare for the hearing. The respondents’ decision to retain Counsel after the Response was filed and the hearing has been scheduled does not constitute exceptional circumstances. With respect to the criminal matter, even if this matter is ongoing I am not satisfied that it is relevant to the issues which are before the Tribunal.

AMENDED RESPONSE

15Given the parties’ consent, the respondents’ request to file an amended Response is granted. The amended Response must be delivered to the applicant and filed with the Tribunal within 14 days of the date of this Interim Decision.

16I draw the parties’ attention to the Tribunal’s Rule 9 which provides as follows:

9.1 An Applicant who intends to prove a version of the facts different from those set out in a Response must deliver and file a Reply in Form 3 setting out the different version, unless it is already contained in the Application. An Applicant may also reply to any other matter raised in the Response.

9.2 The Reply must deal only with new matters that are raised in the Response.

17The applicant may file a Reply within 21 days from the date of this Interim Decision.

18As the parties are aware, the Notice of Hearing requires the exchange of documents to be relied upon at the hearing and witness statements by June 12, 2015. In light of my decision to grant the respondent an opportunity to file an Amended Response, the parties may need some additional time to prepare their disclosure and witness statements. Therefore, I am extending the deadline for the exchange of documents to be relied upon at the hearing and witness statements until 28 days after the date of this Interim Decision.

MEDIATION

19As noted above, both parties have indicated an interest in attempting mediation.

20It is not the Tribunal’s practice to offer mediation after an Application has been scheduled for a merits hearing. However, Rule 15A authorises the use of mediation-adjudication where the adjudicator assigned assists the parties with their consent to resolve their disputes on the understanding that a settlement is not reached the adjudicator will go on to hear and determine the case. The parties should advise the Registrar as soon as possible if they wish to pursue mediation-adjudication.

ORDER

21The adjournment request is denied.

22The respondents shall file an Amended Response within 14 days of the date of this Interim Decision.

23The applicant may file a Reply with 21 days of the date of this Interim Decision.

24The deadline for the exchange of documents to be relied upon at the hearing and witness statements is extended to 28 days of the date of this Interim Decision.

25I am not seized of this matter.