Cathy Caster v. George Brown College, 2009 HRTO 1758

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cathy Caster

Applicant

-and-

George Brown College

Respondent

INTERIM DECISION

Adjudicator: Judith Hinchman

Date: October 23, 2009

Citation: 2009 HRTO 1758

Indexed as: Caster v. George Brown College

APPEARANCES BY

) Cathy Caster, Applicant ) No one appearing ) ) George Brown College, Respondent ) Brenda Bowlby, ) Counsel

1The applicant filed a complaint dated March 5, 2006 (the “Complaint”) with the Ontario Human Rights Commission (the “Commission”) alleging a breach of the Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”) by the respondent. The applicant abandoned the Complaint and filed an application (the “Application”) with the Human Rights Tribunal of Ontario (the “Tribunal”) pursuant to s. 53(5) of Part VI of the Code.

2A hearing in this matter was scheduled for October 20, 2009. The Tribunal sent the applicant a Confirmation of Hearing notice by regular mail on July 14, 2009. The notice informed all parties that the Tribunal had scheduled a hearing of the Application on September 23, 2009 at 655 Bay Street, Toronto, commencing at 9:30 a.m.

3The applicant wrote to the Tribunal on August 6, 2009 indicating that she would like to participate by teleconference because she was moving to British Columbia after September 21, 2009. By Interim Decision, 2009 HRTO 1515, dated September 22, 2009, the Tribunal denied her request and directed her to confirm to the Tribunal within ten days that she would attend the October 20, 2009 hearing. The Interim Decision was emailed to the applicant and by return email the same day, the applicant confirmed that she would attend.

4I am satisfied that the applicant had proper notice of the hearing.

5The respondent and several witnesses attended the hearing with their counsel at the date, time, and place that was set out in the Confirmation of Hearing notice. The applicant did not appear.

6At the hearing, I invited submissions from the respondent on how I should deal with the applicant’s failure to appear. The respondent requested that the Tribunal dismiss the Application on the basis that the applicant had indicated she would attend and has not appeared and, as well, had not filed any disclosure as directed by the Tribunal’s Rules of Procedure for Transition Applications in accordance with the schedule set by the Tribunal in a July 14, 2009 letter from the Registrar-Transition. I reserved my decision and the hearing was adjourned.

7By two voice messages left after business hours on October 21, 2009, the applicant informed the Tribunal that she was too ill to travel and indicates that she has a doctor’s note to support this and would like the hearing rescheduled.

8Rule 5.13 of the Tribunal’s Rules of Procedure for Transitional Applications states:

Where a party has been notified of (…) the hearing under a section 53(5) Application and fails to attend, the Tribunal may:

a) proceed in the party’s absence;

b) decide the Application based solely on the materials before it;

c) take any other action it considers appropriate.

9The applicant commenced a legal proceeding when she filed her Application with the Tribunal. It is the applicant’s responsibility to participate in this proceeding by taking the necessary steps to pursue it, including attending the hearing scheduled to consider the allegations raised in the Application.

10Furthermore, filing an application engages the use of the Tribunal’s administrative, mediation, and adjudicative resources in the processing of the matter. It also results in the respondent having to devote resources and time to respond to an application and prepare for a hearing. An application thus ought not be initiated lightly, and it is reasonable for the Tribunal to expect applicants to demonstrate their commitment to their obligations under the process.

11The applicant has indicated that she was advised not to travel. Yet she did not contact the Tribunal either prior to or even on the day of the hearing to indicate her decision not to attend. In these circumstances, however, it is not appropriate to consider the respondent's request to dismiss the Application without permitting the applicant an opportunity to respond.

12I therefore direct the applicant to provide an explanation for her failure to attend the scheduled hearing, to notify the Tribunal of that decision in a timely manner and her failure to provide disclosure and productions as directed by the Registrar-Transition's letter of July 14, 2009. The applicant is directed to provide medical information to support her submissions that identifies the date upon which she became ill and when she was advised she was too ill to travel. The respondent may reply to these submissions.

13The applicant’s submissions must be delivered to the respondent and filed with the Tribunal by November 6, 2009. The respondent shall have until November 13, 2009 to respond.

14If the Tribunal does not receive the applicant’s submissions by November 6, 2009, it will treat the Application as abandoned and dismiss it.