Pietrzyk v. Rygier, 2016 HRTO 1523

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marta Pietrzyk

Applicant

-and-

David Rygier

Respondent

AND BETWEEN

Dorothy Lukey

-and-

David Rygier

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: November 28, 2016

Citation: 2016 HRTO 1523

Indexed as: Pietrzyk v. Rygier

WRITTEN SUBMISSIONS

Marta Pietrzyk and Dorothy Lukey, Applicants

Roger Love, Counsel

David Rygier, Respondent

Alex Alton, Counsel

1These are Applications filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to occupancy of accommodation because of sexual orientation, gender expression, association with a person identified by a prohibited ground of discrimination and reprisal. The hearing of this matter is scheduled for December 7 and 8, 2016.

2This Interim Decision addresses the respondent's request to adjourn the hearing. In an e-mail message dated November 16, 2016, the respondent requested that the hearing be rescheduled in early January 2017. The respondent gave two reasons for the request. First, the respondent was recently scheduled for an appointment with a surgeon at Sunnybrook Hospital on December 6 and 7, 2016. The appointment relates to a pre-existing condition and may result in him having to undergo surgery. The second day of the appointment conflicts with the first day of the hearing, but he could not reschedule the appointment. Second, the respondent recently retained counsel who indicates that they need time to familiarize themselves with the case and to comply with the respondent's disclosure obligations. Unfortunately, counsel's ability to do is hindered by the fact that they are about to begin a trial in the Superior Court. The respondent submitted that it is in the "interests of justice" to grant the adjournment to allow the respondent to be properly represented by his counsel of choice.

3The Tribunal directed the applicants to make submissions regarding the request, which they did on November 24, 2016. The applicants oppose the request, noting that they have taken time off work to attend the hearing and have summonsed a witness for the currently scheduled dates. They also submit that the applicant did not provide the medical reasons for the request when the respondent asked for their consent to the adjournment request.

Analysis and Decision

4For the reasons that follow, the request to adjourn is granted in part.

5The 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.

6The Tribunal has consistently refused to grant adjournment requests where a party retains counsel shortly before a hearing and has expressed the expectation that counsel retained after a notice of hearing has been issued will be available on the dates previously scheduled. See for example, Vallentyne, above, Riad v. Ontario (Attorney General), 2013 HRTO 1370 Simone v. Amazing Custom Fabricators Inc., 2013 HRTO 285 and Stone v. United Brotherhood of Carpenters and Joiners of America, 2014 HRTO 414. Consequently, the fact that the respondent has retained counsel whose commitments conflict with their ability to represent the respondent is not in my view an exceptional circumstance that would warrant an adjournment.

7On the other hand, the respondent has a medical appointment that conflicts with the first day of the hearing and was not able to reschedule the appointment. The respondent should not have to choose between attending the hearing of this matter and attending an important medical appointment, which apparently will determine whether he requires surgery. In my view, this amounts to an exceptional circumstance that warrants cancelling the hearing date on December 7, 2016. The respondent has not provided any information that indicates that he will be unable to attend the hearing date on December 8, 2016 and the hearing will proceed on that date.

Order

8The Tribunal orders as follows:

1. The hearing date on December 7, 2016 is cancelled; and,
2. The hearing shall proceed on December 8, 2018.

9The respondent is reminded of his disclosure obligations as set out in the Case Assessment Direction, dated November 10, 2016.