HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Wahida Kurji
Applicant
-and-
Chaim Goldberg
Respondent
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: Kurji v. Goldberg
WRITTEN SUBMISSIONS
Wahida Kurji, Applicant
Kevin Sambrano, Paralegal
Chaim Goldberg, Respondent
Sheryl L. Johnson, Counsel
1A hearing in respect of this Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended, is scheduled for September 1 and 2, 2016, in Toronto.
2On July 21, 2016, the respondent requested an adjournment of the hearing dates to November or December 2016 due to unavailability arising out of a family matter during the months of September and October, 2016. The respondent also indicated a willingness to participate in mediation.
3On July 21, 2016, the applicant filed her objection to the adjournment request and on July 23, 2016, the applicant filed reasons for the objection, arguing that the hearing is only six weeks away and the respondent’s request is not as a result of an illness to the party, witness, or representative, or any other such extraordinary circumstances. The applicant also maintains that the respondent was well aware of the scheduled hearing date as of April 18, 2016, and failed to request a rescheduling within the allotted time frame. The applicant indicates that she will not be available during the months of November and December and she argues that an adjournment would result in substantial prejudice to her. The applicant also indicated her consent to mediation.
4On July 25, 2016, the Tribunal directed the respondent to provide, by July 28, 2016, further particulars regarding the reasons for the adjournment request.
5The respondent filed further particulars on July 28, 2016, indicating that one of his main witnesses is not available on those days as she has to care for her daughter who is having dental surgery on August 31, 2016.
adjournment request
6The Tribunal’s Practice Direction on requests to adjourn or reschedule reads as follows:
The Tribunal discourages requests for adjournments outside the 14-day period to request rescheduling of a hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the Tribunal will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the Tribunal will not grant adjournments, even when all parties consent.
7In 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 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.
8The inability of a single witness to attend a multi-day hearing does not constitute exceptional circumstances that justify an adjournment of the entire hearing: Damassia-Correa v. Coin Co. International PLC, 2011 HRTO 2191, and Saunders v. Monkey See Monkey Do, 2016 HRTO 954. Even if one of the respondent’s proposed witnesses is not available on the upcoming hearing dates, the scheduled hearing time can still be put to good use by hearing from other witnesses. If necessary, the respondent may seek an adjournment of the hearing after the Tribunal has heard from other available witnesses, although it is possible that the Tribunal will need the full two days to hear the testimony of the other witnesses in any event. In addition, the parties have indicated their intention to participate in mediation. Although counsel for the respondent has requested that this take place in advance of the hearing, there is insufficient reason to deviate from the Tribunal’s usual process of offering mediation-adjudication, to those who either did not participate in mediation in the usual course, or did not resolve the matters in dispute at mediation.
9The respondent’s request for an adjournment is denied and the hearing will proceed as scheduled.
Mediation-Adjudication
10The Tribunal’s Rule 15A authorises the use of mediation-adjudication where the adjudicator assigned assists the parties, with their consent, to resolve their disputes. In mediation-adjudication, there is an understanding that if a settlement is not reached the adjudicator will go on to hear and determine the case.
11The parties may also wish to engage in mediation-adjudication by conference call prior to the hearing dates. A copy of the mediation/adjudication agreement is attached.
12If the parties are agreeable to engage this process they may advise the Tribunal at their earliest convenience.
13The Human Rights Tribunal of Ontario’s (“HRTO”) Rules of Procedure are available at www.sjto.gov.on.ca/hrto under “Law, Rules and Policies”.
14The parties may also benefit from reviewing the Tribunal’s “Guide to Preparing for a Hearing before the HRTO”, available at www.sjto.gov.on.ca/hrto under “Guides and Forms”.
ORDER
15The respondent’s request for an adjournment is denied.
Dated at Toronto, this 4th day of August, 2016.
“Signed by”
Josée Bouchard
Vice-chair