Wayne Inamoto v. Wildly Delicious Preserve Co. Ltd., 2016 HRTO 1372

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wayne Inamoto

Applicant

-and-

Wildly Delicious Preserve Co. Ltd.

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: October 24, 2016

Citation: 2016 HRTO 1372

Indexed as: Inamoto v. Wildly Delicious Preserve Co. Ltd.

WRITTEN SUBMISSIONS

Wayne Inamoto, Applicant

Self-represented

Wildly Delicious Preserve Co. Ltd., Respondent

Austin Muscat, Representative

1The purpose of this Interim Decision is to deal with the respondent’s request to adjourn the hearing scheduled for October 25, 2016.

2On March 3, 2016, the Tribunal issued a Notice of Mediation to the parties, which informed them that the mediation was scheduled for April 4, 2016. The respondent appeared for the mediation, but the applicant did not. He did not contact the Tribunal to explain his absence.

3On April 6, 2016, the Tribunal issued a letter to the applicant, which stated:

The applicant failed to appear at the scheduled mediation, and did not advise the HRTO prior to the scheduled date or at any time after the mediation date that he could not attend.

By April 18, 2016 the applicant must advise the HRTO and the respondent(s) in writing whether he intends to proceed with this Application.

4On April 8, 2016, the applicant sent the Tribunal an email, which stated that due to an unforeseen circumstance, he was unable to attend the mediation, but still wished to pursue the matter.

5On June 28, 2016, the Tribunal issued a Notice of Hearing to the parties, which informed them that the hearing was scheduled for October 25, 2016. The Notice also informed them that requests for adjournments will be dealt with in accordance with the Tribunal’s Practice Direction: Scheduling of Hearings and Mediations, Rescheduling Requests, and Request for Adjournments. The Practice Direction provides that requests to reschedule a hearing must be made within 14 days of receiving the Notice, and requests for adjournments thereafter will only be granted in extraordinary circumstances, such as the illness of a party, witness, or representative.

6On October 18, 2016, the respondent sent the Tribunal an email, which requested that the hearing be adjourned. The respondent provided the following reason for the adjournment request:

At present we are due to have our annual food safety audit for 3rd party certification as a compliance requirement of our major customers. Our verification date is always the end of September however, due to high demand of the auditors we have until very recently been unable to secure an audit date. Late last week we got scheduled for 3 days commencing October 24th. While the audit schedule is out of our hands, we are past our deadline and must complete the audit by the end of October or lose our certification. Our customers requiring this audit represents millions in revenue to our company and cannot be taken lightly. Owner attendance at these audits is mandatory and as I am COO and responsible for the operation of the plant, I have to be in attendance with QA and the auditors.

7On October 18, 2016, the applicant sent the Tribunal an email, which opposed the adjournment request. He stated that the respondent has two owners, and that one should attend the audit and the other should attend the hearing. He also stated that if the respondent cannot spare the time to attend the hearing, it should make him an offer to settle the case.

8The respondent’s request to adjourn the hearing was made more than 14 days after the Notice of Hearing was issued to the parties. The Tribunal’s approach to late adjournment requests was set out in Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 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 [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 those broader interests by requiring that a party advise within five days [now 14 days] that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

9In my view, the respondent’s reason for requesting an adjournment of the hearing constitutes an extraordinary circumstance that justifies adjourning the hearing. Furthermore, it would be unfair to the respondent not to grant the request given the applicant’s failure to attend the mediation. Accordingly, the respondent’s request to adjourn the hearing scheduled for October 25, 2016 is granted.

10The Tribunal directs the parties to communicate with each other, and advise the Registrar by no later than two weeks from the date of this Interim Decision, as to their mutual availability for a rescheduled hearing.