Ontario Labour Relations Board
File No.: 1267-00-ES Date: May 30, 2001
Applicant: Vivace Tavern Inc. o/a House of Lancaster Responding Parties: Wendy Maxwell-Edwards and Ministry of Labour
Before: Patrick Kelly, Vice-Chair
DECISION OF THE BOARD
The hearing in this matter began on January 12, 2001 and continued on April 2, 3 and 9 2001. The applicant called five witnesses and closed its case. The claimant completed her evidence in chief on April 3, 2001, and her cross-examination was to have commenced on April 9, 2001. However, the applicant dismissed its counsel earlier that morning. In the circumstances the Board granted the applicant’s request for an adjournment of the rest of the day, as well as the hearing date of April 10, 2001. Before adjourning, the Board set three dates for the continuation of this matter, June 4, 6 and 19, 2001. The Board indicated clearly to the parties its concern about further delay of the hearing.
By letter dated April 27, 2001, the new counsel for the applicant advised the Board that he had been retained.
The Board is in receipt of correspondence dated May 25 and May 27, 2001 from counsel for the applicant requesting an adjournment, disclosure of certain information from the other parties and counsel for the claimant responding party, and permission to “re-open” the applicant’s case. The Board is also in receipt of correspondence dated May 28, 2001 from counsel for the applicant advising of the applicant’s intention to bring a verbatim reporter to the hearing to transcribe the proceedings, and requesting to be advised of any conditions or procedures affecting that intention.
The request for adjournment is based upon counsel’s desire for additional time to prepare and review certain matters. The request fails to disclose whether the applicant is seeking adjournment of all three June dates. The request is also uncertain regarding the length of time needed before counsel’s preparation will be completed.
There are four matters advanced by counsel for the applicant in support of the adjournment request. One of those matters involves an investigation into alleged discrepancies between apparently different versions of a contract which the claimant states governed her relationship with the applicant. A document purporting to be such a contract was marked as an exhibit in the hearing. In its application for review, the applicant contended that the document was not genuine, that it was a forgery. In preparing to take over the case, newly retained counsel for the applicant notes discrepancies between the exhibit and the other versions which he has reviewed.
Secondly, the applicant states that it needs more time to review six previously undisclosed pieces of correspondence, mainly between the Employment Standards Officer and the claimant’s counsel.
Thirdly, the applicant requests additional time to consider the ramifications of the alleged release of evidence seized from the applicant by the police, some of which may have found its way into this hearing. In the applicant’s view, there may now be issues related admissibility of that evidence.
Fourthly, and finally, the applicant advises that it has sought production from the Toronto Chief of Police of a videotape of an interview involving the claimant and a police officer regarding the claimant’s engagement with the applicant. It is not clear what the relevance of that videotape is, but the applicant states that it requires time to review that evidence and arrange to make a transcript.
The genuineness of the contract has been in issue from the time this application was filed. The applicant appears to want time to gather more evidence to bolster its position in this regard. There is some suggestion that the Employment Standards Officer who investigated the claim was in possession of a version of the contract different from the one marked as an exhibit in the hearing. As this hearing constitutes a trial de novo, I see no significance in that suggestion. Moreover, there has been more than adequate time to consider the import of the six pieces of correspondence referred to above. The relevance of the police video tape is not apparent, nor is it clear that its existence could not have been ascertained long ago with due diligence. Finally, the admissibility of any evidence which has been heard or marked as an exhibit during the hearing is a matter that can be dealt with in final argument.
In my view, the interests of the applicant in seeking yet another adjournment of this matter are clearly outweighed by the claimant’s interest in expedition. The applicant has received the benefit of two adjournments already. Counsel has been retained since at least April 27, 2001. Even accepting that counsel was unable to review all documents until May 18, 2001, that left sixteen days to investigate any concerns arising from that review before the hearing resumes on June 4, 2001. It bears repeating that, in the middle of this proceeding, the applicant decided it did not wish to be represented by its counsel of record. Through its own action in dismissing its legal counsel, the applicant caused a substantial delay and took the risks associated with having to bring new counsel “up to speed”. I am not prepared to grant a further delay of this hearing on the basis advanced by counsel for the applicant.
The request for adjournment is denied.
With respect to the applicant’s request for disclosure of information, that matter can be dealt with at the outset of the hearing on June 4, 2001. The applicant must make clear the relevance of the information it seeks, particularly as that information seems to pertain to the propriety of the Employment Standards Officer’s investigation of the claim. As I have indicated, this hearing is in the nature of a trial de novo, and to the extent there were any irregularities in that investigation, the applicant must demonstrate why the Board should concern itself with such an issue, and order production.
The applicant seeks to re-open its case. That is an issue which can be raised at the hearing of this matter, once the claimant has closed her case on the evidence.
Finally, with respect to the use of a verbatim reporter at the hearing, the Board is concerned with the timing of the applicant’s request, a request for which no reason was advanced. As I have indicated, the applicant’s witnesses have testified. The claimant’s testimony in-chief was heard, and her cross-examination is about to begin. Up to this point, all the testimony has been given without the presence of a verbatim reporter. The Board is concerned that the injection of a reporter at this stage, in the absence of any compelling reason, is unnecessary and potentially compromises the adjudication of this matter. The Board declines to permit the applicant to make use of a verbatim reporter in this matter.
“Patrick Kelly”
for the Board