Ontario Human Rights Commission v. Walter DeWilde c.o.b. as Tri Community Physiotherapy, 2003 HRTO 20

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Racheal Baylis-Flannery

Complainant

-and-

Walter DeWilde c.o.b. as Tri Community Physiotherapy

Respondent

INTERIM DECISION

Adjudicator: Mary Ross Hendriks

Date: September 30, 2003

Citation: 2003 HRTO 20

Human Rights Tribunal of Ontario

400 University Avenue, 7th Floor

Toronto ON M7A 1T7

Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946

TTY (416) 314-2379 / 1-800-424-1168

APPEARANCES

Ontario Human Rights Commission ) Raj Dhir, Counsel

Walter DeWilde, c.o.b. as )

Tri Community Physiotherapy, ) Kenneth Marley, Counsel

Respondent )

INTRODUCTION

1These are the Tribunal’s Reasons and Order for its Interim Decision concerning the disposition of a motion brought by counsel for the Respondent, Kenneth Marley, for leave to be removed as counsel for the Respondent in these proceedings.

2Mr. Marley brought this motion because he is unable to locate his clients, at either their business address or personal address, and has not been instructed or retained to proceed with the forthcoming hearing on the merits.

THE MOTION

3Mr. Marley seeks an Order from the Tribunal removing him as counsel of record for the Respondent.

BACKGROUND TO THE HEARING OF THIS MOTION

4Mr. Marley has provided the Commission and the Tribunal with a sworn affidavit, dated September 22, 2003, that outlines his efforts to communicate with his clients. These efforts have been unsuccessful since late July, 2003. Mr. Marley attests that subsequent to the May 14, 2003 conference call held in this matter, in which the hearing dates of October 14, 15, 16, 17, 20, and 21, 2003 were set, he spoke to his clients, communicated this information to them, and agreed to meet in early September to complete their preparations for the hearing on the merits.

5In his affidavit, Mr. Marley states that when he tried to reach his clients, he received no answer at the Respondent’s residential telephone number.

6Further, in his affidavit, Mr. Marley states that when he called the Respondent’s business telephone number, a woman answered the telephone, advised Mr. Marley that the business went by some other name than the name of the corporate Respondent herein, and that Mr. DeWilde no longer worked at those premises and had left the country permanently.

7At this time, the Tribunal asked Mr. Marley to provide the Commission with the last known addresses and telephone numbers that he had on file for his clients, and he complied with this direction.

8Counsel for the Commission advised the Tribunal that it was satisfied with this information from Mr. Marley.

DECISION

9Mr. Marley’s motion to be removed as counsel of record for the Respondent in these proceedings is hereby granted. The Tribunal finds that he has made all reasonable efforts to locate his client and receive instructions.

ORDER

10The Tribunal orders that Mr. Marley is hereby removed as counsel of record for the Respondent.

11As determined during the May 14, 2003 conference call, the hearing on the merits is scheduled to take place on October 14, 15, 16, 17, 20 and 21, 2003, in Room B of the Windsor Public Library, 850 Ouellette Avenue, Windsor, beginning at 10 a.m. each day.

12The Tribunal finds that the Respondent is on notice of these hearing dates.

13The Tribunal relies on Rules 29-31 of its Rules of Practice, and sections 6 and 7 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, to proceed with the hearing on its merits, as scheduled.