HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
Brandy Johnson
Complainant
-and-
Peter Ekonomidis
Respondent
DECISION
Adjudicator: Mark J. Sandler
Date: February 3, 2006
Citation: 2006 HRTO 2
Human Rights Tribunal of Ontario
400 University Avenue, 7^th^ 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
E-mail hrto.registrar@jus.gov.on.ca
Website www.hrto.ca
APPEARANCES
Ontario Human Rights Commission ) Eddie Taylor, Counsel
Brandy Johnson, Complainant ) No appearance
Peter Ekonomidis, Respondent ) Thomas Stefanik, Counsel
INTRODUCTION
1On February 7, 2002, the Complainant, Brandy Johnson, filed a complaint with the Commission alleging discrimination in the occupancy of accommodation on the basis of sex, family status and receipt of public assistance.
2On April 20, 2004, the complaint was referred to this Tribunal.
3On May 13, 2004, the Initial Conference Call was conducted. The Complainant was then represented by Michelle Mulgrave at the Centre for Equality Rights in Accommodation (CERA). A timetable was set for the exchange of pleadings and disclosure. On the consent of the parties, the Tribunal extended the time for filing of the Respondent’s pleadings, and the date of the pre-hearing conference was accordingly changed from August 4, 2004 to September 2, 2004.
4The pre-hearing conference was conducted on September 2, 2004. During the conference, it became clear that at least one pre-hearing motion, and possibly several, had to be heard and decided upon in advance of a hearing on the merits.
5On December 13, 2004, the Tribunal heard submissions on a motion brought by the Commission, supported by the complainant, for an Order allowing the evidence of Rachel Furey to be taken by way of telephone conferencing. Ms. Furey had been, at the material time, a law school student and volunteer with CERA. She now resides and works in Nunavut. The Commission relied upon statements that the Respondent allegedly made to Ms. Furey in furtherance of its case.
6On December 22, 2004, the Tribunal delivered its Interim Decision 2004 HRTO 18 on the said motion. It was ordered that Ms. Furey would be permitted to provide evidence electronically during the hearing, on certain conditions. Those conditions addressed, inter alia, whether Ms. Furey’s evidence would be taken by way of video conferencing or telephone conferencing. The Interim Decision contemplated that further evidence might be tendered on the reasonable practicability of video conferencing.
7In its Interim Decision, the Tribunal also addressed certain outstanding disclosure issues, as well as a potential issue of solicitor-client privilege raised on behalf of the Complainant concerning documents otherwise disclosable. A further pre-hearing conference was scheduled for January 21, 2005 to address any remaining pre-hearing issues, including the implementation of the Order concerning the evidence of Ms. Furey.
8On January 21, 2005, further submissions were made as to whether Ms. Furey’s evidence should be taken by way of video or telephone conferencing. As well, the issues of disclosure and privilege were addressed.
9On February 1, 2005, the Tribunal delivered its second Interim Decision 2005 HRTO 4 permitting Ms. Furey to testify by way of telephone conferencing. A protocol for the determination of the outstanding issue of solicitor-client privilege was also outlined.
10In accordance with the above protocol, the parties provided written submissions to the Tribunal in March 2005. As well, counsel for the Complainant forwarded to the Tribunal, in a sealed envelope, the documents which were the subject of the disputed privilege claim. Upon reviewing the written submissions and the sealed documents, the Tribunal determined that it was necessary to hear supplementary oral submissions.
11In the meantime, the parties had provided the Tribunal with available dates for the hearing on the merits. Hearing dates of September 9, 14, 28 and 29, 2005 were scheduled. These hearing dates were later adjourned at the request of the Commission and the Respondent and with the consent of the Complainant.
12The privilege claim was never determined and the matter did not proceed to be heard on the merits. The following events intervened.
13On August 9, 2005, Ms. Mulgrave on behalf of CERA, advised the Tribunal and the other parties that CERA would no longer be representing the Complainant. The Commission prepared a registered letter dated August 25, 2005 addressed to the Complainant at her last known address as provided by CERA. The letter reflected, inter alia, that
“Pursuant to Rule 69 of the Tribunal’s Rules of Practice you are being served with this notice and attached documents. Rule 69 states: if the complainant does not respond to the Commission within ten (10) days of receipt of the letter, the Commission may request that the complaint be disposed of.”
The Complainant was requested to contact the Commission.
14Delivery of the documents was attempted the following day. A delivery notice was left at the address with instructions for pickup.
15By motion dated September 8, 2005, the Commission sought an Order disposing of the complaint without a hearing pursuant to Rule 69 of the Tribunal’s Rules of Practice. The evidence in support of the motion was as reflected in paragraphs 13 and 14 above. As well, the evidence established that