HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Donna Jenner
Applicant
-and-
Toronto Newsgirls Boxing Club and Savoy Howe
Respondents
DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Jenner v. Toronto Newsgirls Boxing Club
appearances BY
Donna Jenner, Applicant ) No one appearing
Toronto Newsgirls Boxing Club and ) Laurie Reece, Representative
Savoy Howe, Respondents )
[1] The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on January 7, 2009.
[2] The Tribunal sent the parties a Confirmation of Hearing notice by regular mail on May 7, 2009. The notice informed the parties that the Tribunal had scheduled a hearing of the Application on July 29, 2009, at 655 Bay Street, 14th Floor, Toronto, Ontario, commencing at 9:30 AM. At the hearing, I dismissed the Application with written reasons to follow. The following are my reasons.
[3] The applicant sent the Tribunal several e-mails which acknowledged that she was aware that the Tribunal had scheduled a hearing for July 29, 2009. Furthermore, the Tribunal confirmed to the applicant several times, through e-mails and a Case Assessment Direction (“CAD”), that it had scheduled a hearing for July 29.
[4] Between July 13 and 16, 2009, the applicant sent the Tribunal several e-mails, which indicated that she would not be attending the hearing on July 29 because:
(a) The Tribunal’s Registrar was treating her with disrespect, but showing leniency toward the respondents with respect to their failure to comply with the Tribunal’s Rules on disclosure of documents and witnesses.
(b) She has a mental health disability, which will be aggravated by the adjudication process.
(c) She cannot afford to hire a lawyer for the hearing.
(d) She is on a “disability salary” and does not want to spend money to travel from Windsor to Toronto to attend the hearing.
She requested that the Tribunal decide the case on the basis of the written evidence that she had submitted.
[5] The Tribunal’s Registrar sent the applicant e-mails on July 13 and 15, 2009, which provided her with information about where she could obtain legal assistance, and informed her that she can attend and participate in the hearing, as many parties do, without legal representation. The Registrar also provided her with information about the Tribunal’s Public Complaints Policy.
[6] The Tribunal sent the parties a CAD on July 23, 2009, which set out the potential consequences for the respondents as a result of their failure to comply with the Tribunal’s Rules on disclosure of documents and witnesses. The CAD also directed the parties to review Rule 3.13 of the Tribunal’s Rules of Procedure, which states:
Where a party has been notified of a hearing and fails to attend, the Tribunal may:
a) proceed in the party’s absence;
b) determine that the party is not entitled to further notice of the proceedings;
c) determine that the party is not entitled to present evidence or make submissions to the Tribunal;
d) decide the Application based solely on the materials before it;
e) take any other action it considers appropriate.
[7] The CAD also directed the applicant to review Rule 2.1 of the Tribunal’s Rules, which states:
Parties, representatives and witnesses are entitled to accommodation of Code-related needs by the Tribunal and should notify the Registrar as soon as possible if accommodation is required. The provisions of these Rules will be interpreted and applied in a manner that is consistent with the Human Rights Code.
The CAD further stated:
The Tribunal will accommodate the applicant’s disability-related needs at the hearing up to the point of undue hardship, including, but not limited to, taking breaks. If the applicant is unable to attend an oral hearing at this time because of health issues, she is directed to provide the Tribunal with a doctor’s/medical note prior to July 29.
[8] The applicant sent the Tribunal an e-mail on July 23, 2009, which stated that she would not attend the hearing unless the Tribunal guaranteed that it would not allow the respondents to call witnesses who were not disclosed to her, or present documents that were not disclosed to her. She also stated that she was willing to answer questions, but only from the adjudicator and only through a conference call or Skype. She further stated that she should not be required to submit a doctor’s note to the Tribunal because she is of sound mind and able to make her own decision about how much stress she is able to handle.
[9] The applicant sent the Tribunal a further e-mail on July 24, 2009, which stated that she would not be attending the hearing because of financial constraints. She reiterated her request that the Tribunal decide the case on the basis of the written evidence that she had submitted, and directed the Tribunal not to contact her until it made a decision about the merits of her Application.
[10] The respondents’ representative attended the hearing at the date, time and place that was set out in the Confirmation of Hearing notice. The applicant did not appear, and did not submit a doctor’s/medical note prior to the hearing.
[11] I commenced the hearing at 10:00 AM and invited submissions from the respondents’ representative on how I should deal with the applicant’s failure to appear at the hearing. The respondents’ representative requested that the Tribunal dismiss the Application on the basis that the applicant received notice of the hearing, but refused to attend.
[12] Subsection 43(2) of the Code and Rule 3.5 of the Tribunal’s Rules provide that an Application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions. Although the applicant was willing to waive her right in this regard, the respondents were not. In addition, it is clear from the parties’ pleadings that the merits of the Application could not be disposed of in writing even if the parties had waived their right to make oral submissions. There are important factual issues in dispute which require that witnesses testify under oath or affirmation, and be examined and cross-examined.
[13] Furthermore, the Tribunal clearly indicated to the applicant that it was willing to accommodate her disability-related needs at the hearing up to the point of undue hardship, and that if she was unable to attend an oral hearing at this time because of health issues, to submit a doctor’s/medical note prior to July 29, 2009. The applicant did not attend the hearing, did not request an adjournment of the hearing, and did not submit a doctor’s/medical note.
[14] The applicant commenced a legal proceeding when she filed her Application with the Tribunal. It is the applicant’s responsibility to attend the hearing and provide evidence in support of the allegations raised in the Application. In the absence of such evidence, the Tribunal is unable to proceed with the Application and there is no onus or responsibility on the respondents to provide evidence in response to allegations.
[15] Accordingly, the Application is dismissed.
Dated at Toronto, this 30th day of July, 2009.
“Signed by”
Ken Bhattacharjee
Vice-chair