Dawne Thompson v. Home Instead Senior Care, 2016 HRTO 1009

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dawne Thompson Applicant

-and-

Home Instead Senior Care Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren Date: July 29, 2016 Citation: 2016 HRTO 1009 Indexed as: Thompson v. Home Instead Senior Care

APPEARANCES

Dawne Thompson, Applicant Roger Love, Counsel

Home Instead Senior Care, Respondent Chantel Goldsmith, Counsel

1On July 14, 2016, the Tribunal notified the parties that the hearing of this Application had been scheduled for November 16 and 17, 2016.

2The Notice of Hearing directs that if a party needs to reschedule the hearing dates, that party is to contact the other parties immediately and try to agree on dates that are within 12 weeks of the original hearing date(s).

3On July 15, 2016, respondent’s counsel wrote to the Tribunal and copied applicant’s counsel and indicated that she is not available to attend a hearing on November 16 and 17, 2016. She indicated that she will be on a pregnancy/parental leave from August 2016 to August 2017. She advises that the respondent would like her to continue to represent it and does not want to change counsel and as a result, the respondent is requesting that the hearing of this Application be rescheduled for September 2017.

4The applicant has advised the Tribunal and the respondent that her counsel is also not available on November 16 and 17, 2016.

5The applicant opposes the respondent’s request that the hearing be rescheduled in September 2017. The applicant submits that such a long delay would prejudice her since the hearing will involve credibility issues. The applicant submits that she has already suffered from the passage of time as the alleged perpetrator of the assault has died and certain records are no longer in the possession of the respondent.

6The applicant submits that adjournments are only granted by the Tribunal in exceptional circumstances and this situation cannot be found to be such an exceptional circumstance. The respondent has provided nothing to indicate that another member of her law firm could not proceed with this file. The applicant has highlighted that in many instances, the Tribunal has refused adjournments to unrepresented applicants who seek adjournments in order to retain legal representation.

7The applicant submits that it is common practice for counsel to take leaves from their practice and to have another counsel assigned to their files to ensure the legal proceedings are not subject to needless delay.

Decision

8Rule A3.1 of the Tribunal’s Rules of Procedure state:

The rules and procedures of the tribunal shall be liberally and purposively interpreted and applied to:

(a) promote the fair, just and expeditious resolution of disputes,

(b) allow parties to participate effectively in the process, whether or not they have a representative,

(c) ensure that procedures, orders and directions are proportionate to the importance and complexity of the issues in the proceeding.

9I find that it would not be fair, just and expeditious to allow for such a significant delay in rescheduling the hearing dates.

10I agree with the applicant that the respondent had not made any submissions or provided any evidence to demonstrate that another member of her firm could not take carriage of this file. The respondent’s counsel has indicated that it is the respondent’s preference to have her continue to represent it and does not want to change counsel.

11In LaFortune v. Washington Mills Electro Minerals, 2009 HRTO 14, the Tribunal addressed a similar request made by a legal representative. The Tribunal determined that:

To adjourn this Application for six or seven (or more) months to permit the respondent to be represented by a particular counsel in circumstances where counsel has had limited involvement with the Application to date and other counsel from the same law firm are readily available. Section 53(4) of the Code requires that applications brought under section 53(3) be dealt with expeditiously. The right of the applicant to have the Application dealt with expeditiously must be balanced against the request by the respondent to be represented by particular counsel.

12I find that the same reasoning must be applied in this request. Although a summary hearing has been held in this Application, no evidence has been heard and the Application has not proceeded to such a point that it would be difficult for another legal counsel to represent the respondent. I find that the prejudice to the applicant, if such a delay in rescheduling were allowed, would far outweigh any prejudice to the respondent that could result from having new counsel assigned to this Application.

ORDER

13The respondent’s request to have the hearing of this Application rescheduled to September 2017 is denied.

14Within 14 days of the date of this Interim Decision, the respondent shall advise the Tribunal and the applicant of the name and contact information of its legal representative.

15Within 21 days of the date of this Interim Decision, the parties shall canvas with each other and advise the Tribunal of 5 mutually agreeable blocks of dates for a 2 day hearing. These dates should fall within 12 weeks of November 16 and 17, 2016.