Aftab Ahmed v. Magellan Aerospace Corporation, 2016 HRTO 512

Human Rights Tribunal of Ontario

B E T W E E N:

Aftab Ahmed Applicant

-and-

Magellan Aerospace Corporation Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: April 19, 2016 Citation: 2016 HRTO 512 Indexed as: Ahmed v. Magellan Aerospace Corporation

WRITTEN SUBMISSIONS

Aftab Ahmed, Applicant David Baker, Counsel

Magellan Aerospace Corporation, Respondent Martin Addario and Samantha Crumb, 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, ethnic origin and reprisal.

2A significant preliminary issue arose in this matter regarding several documents that the respondent states are arguably relevant, but has not produced because it states they are controlled goods as defined in the Defence Production Act, RSC, 1985, c. D-1 (“DPA”). The applicant’s counsel has not been authorized to receive the documents, pursuant to the Controlled Goods Regulations, SOR/2001-32. In submissions regarding the Tribunal’s authority to order production of these documents, the respondent advised that it had registered its counsel and an investigator retained by it, Ms. Nemni, under its business registration pursuant to the Controlled Goods Regulations. The respondent states that in the course of its efforts to determine how the applicant’s counsel may be authorized to access the documents in question, it very recently learned that it could not register its counsel and Ms. Nemni in this manner. Rather, respondent’s counsel and Ms. Nemni must independently register in the Controlled Goods Program, as does the applicant’s counsel. Consequently, neither the parties’ counsel nor Ms. Nemni, a likely witness, may access the documents in question at this time. In these circumstances, both parties have requested adjournment of the hearing dates scheduled for April 26 and 27, 2016.

Analysis and Decision

3The 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.

4In my view, adjournment of the hearing is warranted. As a result of the DPA and the Controlled Goods Regulations, neither the parties’ counsel nor an important witness may review arguably relevant documents in this matter, which obviously impedes their ability to prepare for the hearing. The respondent has filed submissions questioning the Tribunal’s authority to rectify the situation by ordering production of the documents. Regardless, an order requiring production of the documents so close to the commencement of the hearing may be of limited assistance, particularly for the applicant who has had no opportunity to review the documents and consider what other steps he may take in pursuit of his claim in light of the document’s contents. These circumstances are unusual and exceptional and adjournment of the hearing is appropriate.

5I note that the respondent has indicated that it is prepared to participate in Mediation/Adjudication and has proposed that the parties use April 26, 2016 for that purpose. The applicant has not yet responded to this proposal.

Order

6The Tribunal orders as follows:

1. The hearing is adjourned;
2. The Registrar shall return the Application to the hearing queue for scheduling;
3. The applicant shall indicate whether he is willing to participate in Mediation/Adjudication on April 26, 2016 by the end of business on April 21, 2016.