Jerome Mohanarao v. Liquor Control Board of Ontario, 2016 HRTO 1312

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jerome Mohanarao

Applicant

-and-

Liquor Control Board of Ontario

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: October 11, 2016

Citation: 2016 HRTO 1312

Indexed as: Mohanarao v. Liquor Control Board of Ontario

WRITTEN SUBMISSIONS

Jerome Mohanarao, Applicant

Self-represented

Liquor Control Board of Ontario, Respondent

Adrienne Couto, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of race, colour, place of origin, citizenship and ethnic origin.

2The applicant alleges that the respondent did not hire him for discriminatory reasons, an allegation the respondent denies. The hearing of this matter was set for hearing for November 16 and 17, 2016 in a Notice of Hearing dated April 25, 2016.

3In an e-mail message dated September 7, 2016, the applicant requested that the Tribunal reschedule the hearing. The applicant submitted that his employer denied his request for time off on the hearing dates. The applicant submitted that he has exhausted his vacation entitlement and his employer does not have sick days. The applicant requests to reschedule the hearing after January 1, 2017, when his vacation entitlement will be replenished.

4The responded to the applicant’s request by letter dated September 8, 2016. The respondent opposes the applicant’s request. The respondent submitted that the parties agreed to November 16 and 17, 2016 as the hearing dates in this matter, which the Tribunal confirmed in the Notice of Hearing. The respondent submitted that the applicant had ample time to schedule his vacation time or otherwise ensure he would be available on the hearing dates. The respondent submitted that the Tribunal’s Practice Direction on Scheduling and the Tribunal’s jurisprudence indicate that it will grant adjournment requests only in exceptional or extraordinary circumstances where they are made more than 14 days after the Notice of Hearing has been issued. The respondent submitted that the Tribunal’s jurisprudence also indicates that a party being scheduled to work does not amount to an extraordinary circumstance that warrants adjournment of a hearing.

Analysis and Decision

5For the reasons that follow, the request to adjourn is granted.

6The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments provides that requests to reschedule must be made within 14 days of receiving the Confirmation of Hearing and that outside that time adjournments will be granted only in extraordinary circumstances, such as illness of a party, witness or representative. Accordingly, the Tribunal grants adjournment sparingly regardless of the consent of the other parties. In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, The Tribunal stated at paragraph 4:

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.

7Hearings are, of course, scheduled during the workweek and the applicant has known of, and apparently agreed to, the hearing dates in this matter since late April, 2016. Parties to an Application are responsible for ensuring that they can attend hearings as scheduled, subject to truly extraordinary circumstances. The Tribunal has held on several occasions that the fact that a party is scheduled to work is not an extraordinary circumstance warranting an adjournment of the hearing: Gagné v. Algoma University, 2011 HRTO 554; Cohen v. Synergex Corporation, 2013 HRTO 234; Sangineto v. BridgeCo Foods Inc., 2014 HRTO 1554 and Mitchell v. Money Direct Financial Services, 2015 HRTO 154. In this case, however, the applicant’s difficulty is not only that he is scheduled to work on the hearing date, but that he asked for and was denied time off to attend the hearing. In Sangineto and Mitchell, above, the fact that the applicant had not actually asked for time off to attend the hearing was a factor weighing against granting the adjournment. The respondent’s submissions are by no means without merit. The applicant ought to have been more proactive and should have held sufficient vacation to cover the hearing dates in the event his employer would not give him time off, as has indeed occurred. On the other hand, declining the adjournment request would effectively require the applicant to choose between his employment and attending the hearing. In my view, this is an extraordinary circumstance and I am not prepared, at this point, to require the applicant to make this choice. The Tribunal likely will not accept a conflict with the applicant’s work schedule as a reason warranting another adjournment.

8The request to reschedule the hearing is granted.

9Within 14 days of the date of this Interim Decision, the parties shall advise the Tribunal of the dates on which they are available for a two-day hearing in January and February 2017.