BM v. Great Wolf Lodge Niagara Falls, 2016 HRTO 422

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

BM, as represented by his Litigation Guardian, MM

Applicant

-and-

Great Wolf Lodge Niagara Falls and The Jim Pattison Group

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: April 5, 2016

Citation: 2016 HRTO 422

Indexed as: BM v. Great Wolf Lodge Niagara Falls

WRITTEN SUBMISSIONS

BM, as represented by his Litigation Guardian, MM, Applicant

Lorin MacDonald, Counsel

Great Wolf Lodge Niagara Falls and The Jim Pattison Group, Respondent

Dan McDonald, 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 goods, services and facilities because of disability.

2In an earlier Interim Decision in this matter, 2016 HRTO 380, the Tribunal granted the applicant’s request to extend the deadline extend for compliance with Rules 16.2, 16.3 and 17 of the Tribunal’s Rules of Procedure because he was experiencing delays in receiving an expert report. The deadline was extended to March 29, 2016 for both parties and the applicant filed and delivered the documents he intends to rely upon at the hearing, including an expert report.

3By letter dated March 31, 2016, the respondents requested adjournment of the hearing scheduled for April 22, 2016. The respondents submitted that the basis for the request was the late disclosure of the applicant’s alleged expert report. The respondents submitted that in light of the contents of the report the respondent must now retain their own expert (or experts) in order to be able to respond to the applicant’s case and to secure the attendance of such experts.

4By letter dated April 1, 2016, the applicant’s opposed the respondents’ request. The applicant’s noted the Tribunal’s scheduling practices set out in the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournment. The applicant submitted that the respondents have not established extraordinary circumstances warranting adjournment. The applicant submitted that the respondents have had ample time to obtain their own expert reports and that this lack of proactivity does not amount to an extraordinary circumstance. The applicant submitted that the hearing will not conclude on April 22, 2016 it is unlikely that the respondents will be required to call any evidence that day. The applicant submitted that the testimony of his expert can be held over to subsequent hearing dates in order to eliminate any prejudice to the respondents.

Analysis and Decision

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

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.

7A party may retain an expert for a variety of reasons, including to allow it to respond to, or cross-examine an expert called by an opponent. Accordingly, the need for an expert may not become apparent until an opposing party discloses an expert report. In the circumstances of this case, the respondents’ decision to retain an expert at this point is not necessarily an indication of lack of proactivity. However, as I noted previously, the hearing of this matter will require more than the single day currently scheduled and it is most likely that the respondents will not commence their evidence on the first day. See, 2016 HRTO 380 at paragraph 14. The respondents’ concern regarding experts can be addressed by holding over the evidence of the applicant’s expert until the next day of hearing. Consequently, I find that the respondents have not established extraordinary circumstances that would warrant adjournment of the hearing.

Order

8The Tribunal orders as follows:

1. The respondents’ request to adjourn is denied; and,

2. The applicant’s expert shall not testify on the first day of hearing.