LeNeve v. Point Edward Casino, 2009 HRTO 1574

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard LeNeve

Applicant

• and-

Point Edward Casino

Respondent

DECISION

Adjudicator: David A. Wright

Date: September 29, 2009

Citation: 2009 HRTO 1574

Indexed as: LeNeve v. Point Edward Casino

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), filed on August 20, 2008. The respondent did not initially file a Response within 35 days of receipt of the Application, and the Tribunal issued an Interim Decision on October 24, 2008, directing the respondent to do so by October 31, 2008, with an explanation of why it was not filed earlier: see 2008 HRTO 187.

2The respondent filed its Response on October 31, 2008, by e-mail. However, due to an administrative error on the part of the Tribunal, the Response was not placed on the file.

3On December 2, 2008, the Tribunal issued a second Interim Decision, 2008 HRTO 331, in which the respondent was deemed to have accepted all of the allegations set out in the Application. The Tribunal found that, based only on the material before it (which did not include the Response), the respondent had violated the rights of the applicant. The respondent immediately requested reconsideration of that decision on the basis that the Response was in fact filed on October 31, 2008.

4On December 12, 2008, the Tribunal issued a third Interim Decision, 2008 HRTO 392, noting the administrative error and the request for reconsideration, and reconsidering the second Interim Decision on its own motion. The second Interim Decision was reversed, since it was based on the apparent failure of the respondent to have filed a Response, which was not the case. The third Interim Decision indicated that the case would proceed in the normal course.

5On February 5, 2009, the Tribunal scheduled mediation for March 11, 2009. By letter dated February 12, 2009, the applicant indicated his intention to commence an Application for Judicial Review, for which he noted there are no timelines. He advised that "any mediation in this case on my part will be suspended until this Review is completed".

6On February 18, 2009, the Tribunal wrote to the parties cancelling the mediation and requesting five alternate dates for the Registrar to schedule a hearing. On March 3, 2009, the Registrar wrote to the applicant as follows:

I am responding to your recent voicemail message regarding the Tribunal's letter of February 18, 2009. With respect to that message, I must ask that your communications with me and Tribunal staff are courteous and you refrain from name-calling in the future.

A judicial review application is different from an appeal. While an appeal can result in an automatic stay of proceedings or enforcement of an order, neither an intention to seek judicial review nor the filing of an application for judicial review with the Divisional Court operates as a stay of your HRTO Application. Unless the Divisional Court issues a stay, or the Tribunal makes an order to that effect, your Application will continue to be processed. Thus, my letter requesting you to provide hearing dates was entirely proper. I ask that you respond to it. If you fail to do so the Tribunal will issue the Confirmation of Hearing setting a hearing date.

You may wish to consult with a lawyer for advice about your Application and the judicial review process.

7On April 30, 2009, the Tribunal wrote to the parties scheduling a hearing for July 28, 2009. On May 15, 2009, the respondent requested rescheduling of the hearing based upon the unavailability of a witness. On May 28, 2009, the Registrar wrote to the parties directing the respondent's counsel to provide five alternate hearing dates. Respondent's counsel did so on June 4, 2009. Tribunal staff attempted to obtain availability from the applicant over the next two months. On July 30, 2009, the Registrar wrote to the applicant as follows:

The Tribunal has contacted you previously, consulting you about providing dates for the re-scheduling of the Hearing in your Application.

You have not responded to our request for dates.

You must advise the Tribunal of your intentions with respect to this Application.

The Tribunal draws your attention to Rule 5.4 of the Tribunal's Rules of Procedure:

5.4 The Tribunal may finally determine an Application without further notice to any person who cannot be contacted by the Tribunal according to the contact information provided to the Tribunal by that person.

If you do not respond within ten days of the date of this letter, the Tribunal will deem you to have abandoned the Application and close the file. (emphasis in original)

8The Tribunal issued a Case Assessment Direction on September 21, 2009, which reads as follows, at paras. 3-6:

On August 19, 2009 the applicant left a voice message for the Case Processing Officer ("CPO") assigned to the file. The voice message has been transcribed and placed in the Tribunal's file. Among other things, the applicant requested that the CPO advise him of the re-scheduled date. At the conclusion of his message, the applicant stated "I'm gonna get ya. I'm coming Bob. Hear my footsteps."

The Tribunal stated as follows in Ouwroulis v. New Locomotion, 2009 HRTO 335:

Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant's rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal's Rules. The Tribunal's procedures are less formal than a court's and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party's failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.

The tone and content of the applicant's message, in particular the threat to Tribunal staff, is inappropriate. The Tribunal requires of all parties that they treat each other, the Tribunal and its staff with courtesy and respect, and respond to Tribunal communications, even when they disagree with Tribunal decisions. The Tribunal has the power, under its rules and s. 23 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, to prevent abuse of its process. The Tribunal may take further steps if conduct of this nature is repeated.

In all the circumstances, the hearing is rescheduled for December 15, 2009. If either party is not available on that date, it shall advise the Tribunal and the other parties in writing by September 24, 2009 of five other dates prior to the end of 2009 on which it is available. If the other party is not available on any of the five other dates, it shall advise the Tribunal and the other parties in writing within five days which of these dates it is unavailable. A Notice of Rescheduled Hearing will follow.

9On September 21, 2009, the applicant sent a letter to the Tribunal, addressed to me, which reads as follows:

I am responding to your letter of Sept 21/09 which I received this morning. As you don't seem to understand where this case stands, let me enlighten you.

On Dec. 2/09 Mr. Gottheil, your judge in this matter, awarded me a win in this case. That meant the Ontario government must cease ands [sic] desist in its discrimination policies of disabled and injured people in its casinos. That should have been the end of this matter except for the punishment given to the government by Mr. Gottheil for their wrongdoing.

However, one week later Mr. Gottheil changed his mind and REVERSED his decision, thus allowing the government to keep on with their discriminatory practices. I then informed H.R.T.C. that I was beginning a Judicial Review which has no timeline.

I received a threatening letter from H.R.T.C. on July 30/09 and I quote "If you don't respond within ten days of this letter, the Tribunal will have deemed you to have abandoned the Application and close this file".

Well Mr. Wright, you can threaten me all you want. You and Attorney General Bentley would love for this miscarriage of justice to go away. H.R.T.C. and Mr. Bentley have conspired to allow the Ontario government to discriminate against the less fortunate. The truth will come out before I have any more dealings with your commission, which at present is a farce. You have broken the law with the permission of the Attorney General and until you become accountable for this illegal action I am suspending any communication.

The N.D.P. has all the information on you [sic] efforts to change rulings to support the wishes of the government to discriminate and Bentley's promise not to interfere. So don't bother threatening me anymore Mr. Wright. If the situation goes so deep that the N.D.P. can't stop your support of the government's illegal practices perhaps the people of Ontario can. Power of the press Mr. Wright. It's what makes a country stay the course of democracy.

10An Application for Judicial Review does not automatically result in a stay of the Tribunal's process: see Washington v. Toronto Police Services Board, 2009 HRTO 640, Phipps v. Toronto Police Services Board, 2009 HRTO 733. In any event, the applicant has yet to serve his Notice of Application on the respondents or the Tribunal.

11In the circumstances, given Mr. LeNeve's clear expression of refusal to participate in the Tribunal's process or communicate with the Tribunal, the appropriate order is to dismiss the Application as abandoned.

12The Application is dismissed and the scheduled hearing is cancelled.