Barnesky v. Canadian Real Estate Investment Group, 2009 HRTO 2114

Human Rights Tribunal of Ontario

B E T W E E N:

Rickey Barnesky

Applicant

-and-

Canadian Real Estate Investment Group (CANREIG) and

Wendy Monardo

Respondents

DECISION

Adjudicator: Faisal Bhabha

Date: December 7, 2009

Citation: 2009 HRTO 2114

Indexed as: Barnesky v. Canadian Real Estate Investment Group

APPEARANCES

Canadian Real Estate Investment Group and Wendy Monardo, Respondents: Wendy Monardo, Ametra Dave and Deen Bissessar

1This is an Application filed on September 10, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in services, goods and facilities on the basis of disability. The respondents deny the allegations.

2A hearing in this matter was scheduled for December 3, 2009. The Tribunal sent the applicant a Confirmation of Hearing notice by regular mail on August 27, 2009. It was sent to the mailing address provided by the applicant and to which all correspondence related to the Application has previously been sent. It was not returned as undeliverable. The notice informed all parties that the Tribunal had scheduled a hearing of the Application on December 3 and 4, 2009 at 655 Bay Street, Toronto, commencing at 9:30 a.m.

3I am satisfied that the applicant had proper notice of the hearing.

4Representatives of the corporate respondent and the personal respondent attended the hearing at the date, time, and place that was set out in the Confirmation of Hearing notice. The applicant did not appear.

5At the hearing, 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 demonstrated no serious intent to proceed with the Application, having previously failed to attend a scheduled mediation and now failing to attend the hearing. They asked me to draw a negative inference concerning the applicant’s credibility and belief in his case from his failure to attend. It was also noted that the applicant had not filed any documents or witness list in accordance with the Rules. In fairness, the respondents also had failed to meet the disclosure deadline.

6Having considered the respondents’ request, I ruled orally that the Application is dismissed, with written reasons to follow.

DECISION

7Rule 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.

8The applicant commenced a legal proceeding when he filed his 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.

9Furthermore, filing an application engages the use of the Tribunal’s administrative, mediation and adjudicative resources in the processing of the matter. Filing an application also results in the respondent having to invest resources and time to respond to the application and prepare for a hearing. For these reasons, an application must be treated seriously. It is reasonable for the Tribunal to expect applicants to demonstrate their commitment to their obligations under the process.

10On the basis of the applicant’s lack of communication, his failure to comply with the Rules regarding pre-hearing disclosure and his non-attendance at the hearing, I find that the applicant has abandoned his case. The Application is dismissed.