HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Roland Perreaux
Applicant
-and-
Microsoft Canada Inc.
Respondent
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Perreaux v. Microsoft Canada Inc.
1A hearing in respect of this Application is scheduled to begin on October 24 and 25, 2016 in Toronto. A Notice of Hearing was initially issued on June 10, 2016 establishing hearing dates in September, 2016. A timely request to re-schedule was received from the respondent. The parties were informed of the current agreed dates with a second Notice of Hearing issued on July 5, 2016.
2On September 22, 2016 the applicant sought an adjournment. The basis for the request is primarily that new counsel is not available on the scheduled dates. The applicant further advises that his lawyer is not available until February 21, 2016. The applicant also asserts that the adjournment of the case will address the procedural unfairness in having to respond to the amended Response filed by the respondent and alleges that there are many outstanding issues to be addressed.
3The request to adjourn the first two days of this hearing is denied.
4The Tribunal’s Practice Direction provides that requests to reschedule must be made within 14 days of receiving the Notice of Hearing and that thereafter, adjournment will be granted only in extraordinary circumstances. The Practice Direction states the following regarding requests for adjournments:
The HRTO 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 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.
5The primary reason cited by the applicant is not an extraordinary circumstance justifying an adjournment of the hearing. The parties were consulted about the hearing date and the dates were confirmed in a Notice of Hearing sent to the parties issued on July 5, 2015. The applicant has pressed for an early hearing date and aggressively challenged the respondent’s timely request for a re-scheduling.
6The applicant was also clearly aware of the existence of the Human Rights Legal Support Centre from the outset and other representation was always available. No explanation for the applicant’s delay in seeking legal representation has been provided and no explanation has been provided for his not having retained representation that is available on the first days of hearing. I am also concerned about the length of adjournment being sought – the proposed representative is not available until February 21, 2017 – that is simply too lengthy a delay.
7The approach taken here has been consistently held be the Tribunal. In Valentyne v. Royal Canadian Legion 2009 HRTO 660 the Tribunal explained its approach:
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 14) 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 14) days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.
When a party makes a decision to retain counsel after the notice of hearing has been issued, their “choice” of counsel is limited by the date previously scheduled.
See more recently, Hutchinson v International Ladies Garment Workers Union Co-Op, 2015 HRTO 1618.
8The applicant argues as well that he is overwhelmed by the process. It is not clear what this means and again is not a basis for the adjournment of the hearing. However I will observe again that this is a relatively simple case that has been made more complicated by the great number of Requests for Order most of which have been filed by the applicant. Considerable effort has thus been required to clarify and focus the parties on the issues that the Tribunal has jurisdiction over.
9The applicant also accuses the respondent of engaging in “legal wrangling”. I do not agree with this characterization of the respondent’s approach. In this regard the applicant claims prejudice in the fact that he will only receive the respondent’s amended Response a month before the hearing. The fact that an amended Response was due on September 27, 2016 is largely a consequence of the late Requests to amend the Application filed by the applicant. In any event the respondent delivered detailed witness statements to the applicant on or about September 9, 2016. The respondent’s positions on the new issues added by the applicant are addressed in the witness statements. In its correspondence opposing the adjournment request, the respondent undertakes that its amended Response will be consistent with the witness statements. The applicant in reply suggests that the respondent will not comply with this undertaking. Although there is no basis for this accusation it can be addressed during the hearing process if it becomes an issue. I am not satisfied that the applicant has not had adequate notice of the respondent’s position on the issues in the case.
10The applicant also suggests that there are a number of outstanding issues which remain to be addressed by the Tribunal. The only substantial issue potentially affecting the hearing itself is the applicant’s proposed medical evidence and his request that these witnesses be allowed to give their evidence by telephone. The delay in having this issue dealt with is a consequence of the applicant’s failure to provide any information about the evidence these witnesses are expected to give. Any issue with respect to these witnesses will be addressed when the applicant has complied with his obligations under the Rules to disclose the substance of their evidence.
11The applicant argues that with only four weeks left before the hearing it will be very difficult to have all four proposed witnesses available for the hearing. The applicant’s intention to call medical evidence in support of his claim is not a reason to adjourn the first two of what will be a multi-day hearing. The attendance of some or all of these witnesses whether in person or by telephone can be addressed without adjourning the start of this hearing.
12The applicant also argues that there remains outstanding production issues and points to elements of a Request for Production filed on June 21, 2016. This Request may have been overlooked in the flurry of Requests and other correspondence at the time. I also observe that this Request was not raised during the telephone conference call on August 4, 2016. In any event this Request was filed prematurely, prior to the parties being obligated to produce all arguably relevant documents to each other and would have been summarily denied for that reason. It was also on its face overbroad, in the nature of a fishing expedition However if the applicant now has some basis to believe that there remain documents which are relevant to the issues in the case which have not been produced to him he may renew his Request and it will be dealt with.
13For all of these reasons the adjournment request must be denied at this time.
Mediation
14The respondent has again raised its hope that the parties might negotiate resolution of this dispute without the need of a hearing with uncertain result. The applicant’s only response to the respondent’s renewed invitation to treat was to say that the mediation lasted only 15 minutes and there is no reason to believe that any further effort would be any different.
15That was then and this is now. There remains\ compelling reason for the parties to attempt a negotiated resolution of this dispute. The hearing will take several more days than are currently scheduled to be completed. This will entail significant costs and other burdens for both parties. Moreover litigation is an inherently stressful process and the outcome uncertain. I understand that to this point the major stumbling block to an agreed resolution has been the applicant’s commitment to reinstatement to the exclusion of any other potential resolution.
16As I have previously indicated, I understand that the respondent takes the position that reinstatement would not be appropriate in these circumstanced in part because the employment relationship was moribund before any potential Code issue arose. Accordingly the question of whether or not reinstatement would be an appropriate remedy, in the event that the applicant is successful in establishing that his dismissal was discriminatory, is an issue which the Tribunal will be required to consider and determine.
17I am not seized.
Dated at Toronto, this 28th day of September, 2016.
“Signed By”
David Muir
Vice-chair