Gerard King v. Xpedx Canada, 2008 HRTO 283

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gerard King

Applicant

-and-

Xpedx Canada

Respondent

DECISION

Adjudicator: David Muir

Date: November 19, 2008

Citation: 2008 HRTO 283

Indexed as: King v. Xpedx Canada

Human Rights Tribunal of Ontario 655 Bay Street, 14^th 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

1This is an Application filed under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The purpose of this interim decision is to address the applicant’s refusal to provide dates for or to attend a case resolution conference.

2In 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. The Tribunal directed that the matter proceed to the next step in the process, a case resolution conference. On October 28, 2008 the applicant advised the Tribunal that he was unable to attend a case resolution conference on the dates offered by the Tribunal, or “any future dates as I would be missing a full days pay”.

3The Tribunal, in a second interim decision (2008 HRTO 231), made the following directions:

If the applicant wishes to continue this proceeding, he shall advise the Tribunal and the respondents whether he is available on January 27^th, February 5^th or February 11^th 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.

4The applicant has failed to comply with the directions above. In apparent response to the directions above, on November 9, 2008, the applicant advised the Tribunal that he was unable to make himself available for a case resolution conference because he was in a new position and taking time off work could affect his “review”. The applicant further advised that he had provided sufficient information to the Tribunal to resolve the matter and that if it was not sufficient “so be it”. The tenor of the communication from the applicant is that he is unwilling to attend a case resolution conference and wants the Tribunal to determine the issues on the basis of written materials and documents. A review of the material filed provided by the parties, to date, indicates clearly that this is not the kind of case that could be dealt with in writing as the parties have presented significantly divergent narratives underlying their dispute which will require the presentation of oral evidence to sort out. Moreover, the applicant did not provide any reason why the Application should not be deemed abandoned as provided for in the directions in 2008 HRTO 231 above.

5The applicant chose to transfer his complaint to the Tribunal under s. 53(3) of the Code rather than leave it with the Human Rights Commission to investigate under the old system. An application made under section 53(3) of the Code is a legal proceeding where the rights and obligations of the parties are determined in a process which ultimately concludes, if no settlement is reached, in a case resolution conference. Where a person makes an application, they must be prepared to participate in the process including the case resolution conference where evidence in support of the application is presented and in turn the respondents are permitted to challenge that evidence. The Tribunal does have policies which permit parties to request accommodation for particular needs or circumstances. However, here the applicant has made no such request and has refused to provide alternative dates. In light of all of the above, the Tribunal will treat this Application as abandoned and the Tribunal will take to further steps to proceed with it.