Esther Rosianu v. Direct Marketing Centre Inc. and Isabel Collins, 2009 HRTO 2109

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Esther Rosianu Applicant

-and-

Direct Marketing Centre Inc. and Isabel Collins Respondents

DECISION

Adjudicator: Pamela Chapman Date: December 4, 2009 Citation: 2009 HRTO 2109 Indexed as: Rosianu v. Direct Marketing Centre

APPEARANCES BY

Esther Rosianu, Applicant: No one appearing

Direct Marketing Centre Inc. and Isabel Collins, Respondents: Alix P. Herber, Counsel

1The applicant filed a complaint dated October 17, 2007 (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 respondents. The applicant abandoned the Complaint and filed an application (the “Application”) with the Human Rights Tribunal of Ontario (the “Tribunal”) pursuant to s. 53(3) of Part VI of the Code on December 28, 2008.

2A Case Resolution Conference in this matter was scheduled for November 30, 2009. The Tribunal sent the applicant a notice of this date by regular mail on July 6, 2009. The notice informed all parties that the Tribunal had scheduled a Case Resolution Conference on November 30, 2009 at 180 Dundas Street West, Toronto, commencing at 9:30 a.m.

3The respondents and their witnesses attended the hearing with their counsel at the date, time, and place that was set out in the Notice of Case Resolution Conference. The applicant did not appear.

4At the hearing, after waiting 45 minutes for the applicant to attend, I invited submissions from the respondents on how I should deal with the applicant’s failure to appear. The respondents requested that the Tribunal dismiss the Application on the basis that the applicant had 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 6, 2009 letter from the Registrar-Transition.

5It is clear that on July 6, 2009, the parties were directed to file with the Tribunal and with each other, by November 2, 2009, a list of witnesses and details of what they would say at the hearing, along with copies of all documents on which they rely. The respondents filed its will-say statements, and all documents, in compliance with that date. On November 16, the respondents wrote to the Tribunal advising that no material had been received from the applicant, and asking that a further direction be issued in order to ensure adequate time to prepare for the Case Resolution Conference.

6On November 18, 2009, the applicant was directed by the Tribunal a second time to advise the Tribunal and the other party of who the witnesses would be on her behalf, what each witness is expected to say, and to disclose any documents related to the application.

7The Notice of Case Resolution Conference dated July 6, 2009, and the Tribunal's direction of November 18, 2009 were sent to the address provided to the Tribunal by the applicant in her Application, and neither were returned. The Notice of Mediation was sent to the same address, and the applicant attended mediation, at the same location at which the Case Resolution Conference was to be held.

8Furthermore, the applicant has contacted the Tribunal on several occasions by e-mail, indicating that she is aware of how to do so. In more recent e-mails, it appears clear that she was in receipt of the Tribunal's correspondence, and in particular the Notice of Case Resolution Conference.

9I am satisfied that the applicant received timely and proper notice of the Case Resolution Conference.

10Rule 5.13 of the Tribunal’s Rules of Procedure for Transitional Applications states:

Where a party has been notified of the case resolution conference (…) 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.

11The 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 Case Resolution Conference scheduled to consider the allegations raised in the Application.

12In all of these circumstances, and in the absence of the applicant or any explanation regarding her failure to attend, I dismissed the Application at the Case Resolution Conference.