Gerard King v. Xpdex Canada, 2008 HRTO 231

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gerard King

Applicant

-and-

Xpdex Canada

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: November 5, 2008

Citation: 2008 HRTO 231

Indexed as: King v. Xpdex Canada

Human Rights Tribunal of Ontario 655 Bay Street, 14th Floor Toronto, ON M7A 2A3 Phone (416) 314-8419 / Fax (416) 314-8743 / Toll free 1-866-598-0322 TTY (416) 314-2379 / (toll free) 1-800-424-1168 E-mail hrto.registrar-transition@ontario.ca Website www.hrto.ca

Reasons for Decision

1This is an application filed August 11, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). In a prior interim decision dated October 10, 2008 (2008 HRTO 148), the Tribunal cancelled a scheduled mediation in light of the applicant's announced intention not to attend, and directed that the matter proceed a case resolution conference (hearing), following the exchange of additional statements of facts and disclosure in accordance with Rule 9 of the Tribunal's Rules of Procedure for Applications under Section 53(3) of the Human Rights Code (Section 53(3) Rules).

2The Tribunal contacted the parties and offered dates for the case resolution conference in January and February 2009, between 9.30 and 4.30 p.m. On October 26, 2008 the applicant advised the Tribunal that he was unable to attend on the dates offered or "any future dates as I would be missing a full days pay." The respondents confirmed their availability to attend on January 27, February 3, or February 11, 2009.

3The purpose of the case resolution conference is to hear the parties' evidence and submissions in support of the Application and the Response. The Tribunal's Guide to Section 53(3) Applications provides further helpful information about what might happen at the case resolution conference:

What does a party bring to the Case Resolution Conference?

The parties should bring their witnesses, the statement of facts and additional facts, if filed, and all documents on which they intend to rely which were filed with the Tribunal.

If a party is concerned that a witness may not attend to give his or her evidence at the hearing, it can summon the witness. It must do so by contacting the Tribunal to get a Summons to Witness (Form D).

What happens at a Case Resolution Conference?

The Case Resolution Conference is the "hearing" of the application although it is conducted with less formality and the member takes an active role in directing the Conference.

The member is in charge of conducting the Conference and determining how the Conference will proceed. After hearing from the parties, the member will decide which witnesses need to give evidence and in what order, may take the lead in questioning of the witnesses, and may ask the parties to focus their evidence or submissions on certain issues.

What does the Case Resolution Conference decide?

The member will hear the relevant information and arguments and decide whether the applicant experienced discrimination or harassment. The decision will be based on the evidence and arguments presented at the Case Resolution Conference.

4A Tribunal application is a legal proceeding initiated by the applicant, and the applicant bears responsibility for fulfilling the various requirements and participating in the various processes set out in the Tribunal's Rules. One of those obligations is to attend at a case resolution conference and present the evidence in support of his Application, and permit the respondents to challenge that evidence if necessary. Failure by an applicant to do so without reasonable explanation or excuse may result in the Tribunal treating the application as having been abandoned and taking no further steps to proceed with the application, or dismissing the application.

5If the applicant wishes to continue this proceeding, he shall advise the Tribunal and the respondents whether he is available on January 27th, February 5th or February 11th or suggest five alternative dates, Monday to Friday, from 9.30 to 4.30 on which he is prepared to attend the case resolution conference. If the applicant does not comply with this direction within 10 days of the date of this decision, the Tribunal will treat this Application as having been abandoned and will take no further steps to proceed with the Application.

6I am not seized of this matter.