Lina Misotchnick v. Moloney Electric Inc., 2016 HRTO 354

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lina Misotchnick

Applicant

-and-

Moloney Electric Inc.

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: March 18, 2016

Citation: 2016 HRTO 354

Indexed as: Misotchnick v. Moloney Electric Inc.

WRITTEN SUBMISSIONS

Lina Misotchnick, Applicant

Orie Niedzviecki, Counsel

Moloney Electric Inc., Respondent

David Ross, Counsel

1The purpose of this Interim Decision is to deal with the respondent’s request to adjourn the hearing scheduled for March 21 and 22, 2016.

2On September 22, 2015, the Tribunal issued a Notice of Hearing to the parties, which informed them that the hearing was scheduled for March 21 and 22, 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.

3On March 15, 2016, the respondent’s counsel sent the Tribunal an email, which requested that the hearing be adjourned. He stated that the respondent temporarily laid off its entire workforce due to an inability to secure financing, and, as a consequence, is having problems securing an instructing client and witnesses to attend the hearing. The respondent stated that it will notify the Tribunal when its financing has been secured and the hearing can be rescheduled.

4On March 15, 2016, the applicant’s counsel sent the Tribunal an email, which opposed the respondent’s request because there is a lack of specifics in the request about the respondent’s inability to secure an instructing client and witnesses to attend the hearing. The applicant’s counsel stated that the respondent’s owner, who laid off the workforce, should be in a position to be the instructing client, and the respondent can issue summonses to have its witnesses appear.

5On March 16, 2016, the respondent’s counsel sent the Tribunal an email, which stated that his instructing client was the respondent’s Chief Executive Officer, who was included in the layoff, and the respondent’s owner is based in Asia. He also stated that there are challenges issuing international and interprovincial summonses. He further stated that the respondent should be aware of its operational status going forward within three to four weeks.

6On March 16, 2016, the applicant’s counsel sent the Tribunal an email, which stated that the respondent’s owner would not need to be issued a summons to attend the hearing. He also stated that the respondent’s two witnesses both live in the Greater Toronto Area, which means that there is no reason that they cannot attend the hearing voluntarily or by summons.

7The 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.

8In my view, the respondent has identified extraordinary circumstances that justify adjourning the hearing. I cannot see how the hearing can proceed in compliance with the principles of natural justice and procedural fairness if the respondent’s counsel does not have an instructing client at the hearing. Accordingly, the respondent’s request to adjourn the hearing scheduled for March 21 and 22, 2016 is granted.

9However, the applicant also has a right to have her Application heard in an expeditious manner. The Tribunal therefore directs the parties to communicate with each other, and advise the Registrar by no later than four weeks from the date of this Interim Decision, as to their availability for a rescheduled hearing. If the applicant is unable to secure availability dates from the respondent, she shall file a Request for an Order During Proceedings addressing how this matter should proceed.