McMullen v. KJT Restaurants Ltd., 2016 HRTO 553

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniela McMullen

Applicant

-and-

KJT Restaurants Ltd. o/a Wendy's, Kartik Thakker,

and Wendy's Restaurants of Canada

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: April 27, 2016

Citation: 2016 HRTO 553

Indexed as: McMullen v. KJT Restaurants Ltd.

WRITTEN SUBMISSIONS

Daniela McMullen, Applicant

Kris Burke, Paralegal

KJT Restaurants Ltd. o/a Wendy's and Kartik Thakker, Respondents

James Leal, Counsel

Introduction

1The respondents, KJT Restaurants Ltd. o/a Wendy's and Kartik Thakker, request an adjournment of the hearing in this matter scheduled for August 9 and 10, 2016, to which the applicant objects.

2The Notice of Hearing was sent to the parties by mail and e-mail on March 24, 2016.

3On April 15, 2016, the respondents, KJT Restaurants Ltd. o/a Wendy’s and Kartik Thakker, requested an adjournment of this matter because the personal respondent will have family visiting from out of the country in August, 2016.

4The applicant objected because the applicant deferred her licencing exam from August 9, 2016, to January, 2017 to facilitate her attendance at the scheduled hearing.

5In addition, the applicant already began to contact witnesses to advise them of the scheduled date for the hearing.

6The applicant further objects to an adjournment because the Application was filed 11 months before the scheduled date for the hearing, and it is her position that a further delay would impede fair and timely access to justice. In addition, the reason for the adjournment does not constitute exceptional circumstances.

analysis and decision

7The Tribunal’s Practice Direction on Scheduling states as follows about adjournment requests:

The HRTO discourages requests for adjournment outside the 14-day period to request rescheduling of a mediation or hearing, described above. Requests for adjournment, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. They must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing.

The party making the request should contact the Registrar and provide the exceptional circumstances supporting the request and any alternative agreed upon dates. When the request is on short notice, the party must contact the Registrar by email or fax.

8As set out in the Practice Direction, and as confirmed in the Tribunal’s decisions, adjournments are only granted in exceptional circumstances. The Tribunal has explained its rationale for taking such positions in a number of cases including Vallentyne v. Royal Canadian Legion, 2009 HRTO 660. At para. 4, the Tribunal explained why, even when there is consent, an adjournment of a scheduled hearing will not be granted absent exceptional circumstances:

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 proceedings must consider, but the fact that Tribunal time reserved for the resolution of those parties’ disputes 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 [now fourteen] days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of the parties in having hearings scheduled according to their and counsel’s availability with these broader interests by requiring that a party advise within five [now fourteen[ days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

9In this case, the fact that the respondent has family that will be visiting from outside the country does not constitute exceptional circumstances. The hearing is scheduled for only two days. The circumstances do not warrant the hearing being adjourned. The respondents’ request for adjournment is denied.

order

10The respondents’ request to adjourn the hearing is denied.