Aguiar v. Basonje Systems (No. 1), 1992 CanLII 14227

Aguiar v. Basonje Systems (No. 1)

1992-09-15

Ontario Board of Inquiry

Maria Aguiar Complainant

v.

Basonje Systems and James Kan Respondents

Date of Complaint: April 27, 1987 Date of Decision: September 15, 1992 Before: Ontario Board of Inquiry, A.F. Bayefsky Comm. Decision No.: 464

Appearances by: Catherine Bickley, Counsel for the Complainant Alexendra Mersereau, Counsel for the Respondent

PROCEDURE — adjournment due to absence of complainant — COMPLAINTS — dismissal of complaint

Summary: The Board of Inquiry dismisses a complaint which alleges that Maria Aguiar was sexually harassed by James Kan.

The complaint is dismissed because of the failure of the complainant to make herself available to give evidence, or to indicate when she would be available. In her absence, the Ontario Human Rights Commission was unable to call any evidence. The Commission's motion for an adjournment sine die or to another fixed date is denied and the complaint is dismissed.

[Ed. Note: See also (1992), 1992 CanLII 14225 (ON HRT), 19 C.H.R.R. D/415.]

Legislation Cited

Ontario

Human Rights Code, 1981, S.O. 1981, c. 53 s. 4(1): 1 s. 6(3): 1 s. 8: 1

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 7: 8

1I was appointed as a board of inquiry by the Minister of Citizenship, the Hon. Elaine Ziemba, on May 27, 1992. The complaint before me was made under the Ontario Human Rights Code, 1981 [S.O. 1981, c. 53] on April 27, 1987. It concerned the issue of sexual harassment and alleged violations of ss. 4(1), 6(3), 6(3)(a), (b) and 8 of the Code.

The hearing commenced by way of a conference call on Monday, June 1, 1992. Further hearing dates were set at that time. The respondent had been advised of the June 1 hearing date, but neither he nor his counsel participated in that call. Hearing dates were set for July 2, 3 and 8, 1992.

2On June 30 a further conference call took place. Participants were the respondent, his counsel, the Commission and myself. The complainant chose not to participate. An adjournment was requested by the respondent primarily for the purpose of obtaining a copy of a transcript in a criminal trial which respondent's counsel stated was central to her case. I granted the adjournment. Hearing dates were then scheduled for July 24, 28, 29, 30, 31, 1992.

3On July 20 I was notified by counsel for the Ontario Human Rights Commission that the complainant would be unable to attend on any of the scheduled hearing dates due to a death in her family which required her to leave the country. I wrote to the complainant asking her to advise us as to her subsequent availability. I also proposed to commence the hearing as scheduled on July 24 in order to deal with the issue of delay which had been raised by the respondent and to settle any necessary future dates.

4I received a letter from the complainant two days later, but it had apparently been written prior to receiving my letter. It advised me that she would be unavailable for the hearing dates for the reasons counsel had stated earlier. It indicated that she would not be available "until sometime in September." In her letter the complainant wrote: "you have my permission to cancell [sic] this hearing."

5The hearing reconvened on July 24. At that time counsel for the Commission and the respondent made submissions on the issue of delay. This matter was reserved. When we attempted to set new hearing dates counsel for the Commission informed us that the complainant was not in fact out of the country for the entire period between July 20 and September. She was to get married in the middle of August and informed Commission counsel that for this reason she would be unavailable until September 25. Hearing dates were scheduled for September 10, 14, 15, 16, 18, 22, 1992.

6I received a letter from the complainant dated August 12, 1992. It stated that she would not be available until September 21. It did not give any reason for the unavailability other than that she would be out of town. It also stated "I give permission to go ahead and cancell [sic] the hearing." Counsel for the Commission subsequently sent me a letter dated August 19, 1992, which indicated that the complainant had returned to Canada but would be leaving the country once again. Commission counsel said that the complainant did not give her any indication as to when she would be returning. Counsel requested the hearing be adjourned sine die.

7The hearing reconvened on September 10. Present were the respondent, his counsel and counsel for the Commission. The complainant was not present. Commission counsel stated that she had not spoken to the complainant since August 11. She had recently spoken with the complainant's father. He informed her that the complainant would not be back in Canada for another month to six weeks, but he could not be sure of any dates. The complainant had not provided the Commission with any address or telephone number in Portugal, where she had gone.

The Commission requested an adjournment sine die or to a date to be named. She stated that in the absence of an adjournment the Commission was unable to present evidence. The respondent opposed the adjournment on either basis.

8I decided to deny the adjournment. Pursuant to s. 7 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, the Board has jurisdiction to proceed in the absence of a party who has been given reasonable notice and fails to attend the hearing. The previous adjournment granted on July 20 was granted on the basis of the complainant's need to attend a family funeral outside of the country. Adequate time had been set aside for this purpose. Despite her return to Canada some time during the month of August, the complainant chose to leave again without providing any information as to where or how she could be reached. At the time of the hearing on September 10, the Commission had no precise information as to when she was scheduled to return or when she would be available. At the same time, the respondent had now waited over five years for a resolution of the serious allegations against him. In view of the Commission's position that in the absence of an adjournment it would be unable to call evidence, I ruled orally that the complaint was dismissed.

9A motion for costs was made by the respondent. This was opposed by counsel for the Commission. A further hearing date of September 24 was set to consider the issue of costs.