Prince Okunbor v. Hopewell Logistics Inc., 2009 HRTO 2124

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Prince Okunbor Applicant

-and-

Hopewell Logistics Inc., Larry Hargreaves and Marcel Sivret Respondents

DECISION

Adjudicator: Andrew M. Diamond Date: December 8, 2009 Citation: 2009 HRTO 2124 Indexed as: Okunbor v. Hopewell Logistics

APPEARANCES

Prince Okunbor, Applicant ) No one appearing Hopewell Logistics Inc. and Larry Hargreaves, Respondents ) John J Bruce Counsel Marcel Sivret, Respondent ) Eric Del Junco, Counsel

Introduction

1This is an Application filed under section 53(3) of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the "Code") alleging discrimination in employment based on ancestry, colour, ethnic origin and race. The original complaint was made to the Ontario Human Rights Commission on November 11, 2007. That complaint was abandoned and filed with the Human Rights Tribunal of Ontario (the "Tribunal") on August 29, 2008.

2On January 29, 2009, a mediation and case management session was held. The matters were not resolved and the Tribunal issued the Notice of Case Resolution Conference ("CRC") on February 5, 2009. While earlier dates were available, the CRC was scheduled for October 5 and 6, 2009 to accommodate the applicant's schedule.

3The applicant failed to attend at the CRC on October 5, 2009. Counsel for the respondents made submissions that the Tribunal should dismiss the Application. However, counsel encouraged the Tribunal not only to dismiss the Application for abandonment but to find that the applicant had conducted himself in such a way as to constitute an abuse of process. At the hearing, I dismissed the Application as abandoned with reasons to follow and advised I would consider the submissions on abuse of process in my reasons. These are those reasons.

Background

4In making their argument, the respondents took the Tribunal through a lengthy chronology of alleged inaction and delay. While I do not believe it is necessary to set out the entire chronology, below are the key milestones on the journey to the CRC that the respondents submit constitute a pattern of non-engagement that amounts in its entirety to an abuse of process.

January 29, 2009: Despite having voluntarily transferred his complaint to the Tribunal under the transition provisions which are designed to give a speedy resolution to complaints that had been made to the Commission, the applicant advised that he would not be available for his CRC for a period of more than nine months.

March 13, 2009: The applicant failed to comply with the Tribunal's order that he serve and file a statement of facts upon which he intends to rely, a description of remedies he is seeking, and a copy of all arguably relevant documents in his possession.

March 30, 2009: The applicant finally filed his Statement of Facts and Remedy. He did not seek an extension, nor did he provide an explanation for why the material was late.

April 6, 2009: The Tribunal issued an Interim Decision stating that the issues of the consequences of the applicant's late filing and lack of particulars would be dealt with at the CRC.

April 8, 2009: The applicant failed to comply with the Tribunal's order that he serve and file his submissions in response to the respondents' submissions respecting production of documents. The applicant never filed submissions, and has never made a request for extension or provided an explanation.

July 14, 2009: The applicant advised his representative that he was leaving the country. The applicant did not provide his representative with any method of contact. Unfortunately, for reasons which have never been explained by the applicant or his representative, the first time the applicant's representative advised the Tribunal that the applicant had left the country and could not be contacted was on September 16, 2009, three weeks before the hearing.

Sept. 15, 2009: The applicant failed to comply with Tribunal's order and Rules and did not serve and file a list of witnesses, a description of what each witness will say, a list of documents, and copies of any documents not previously provided. He made no request for an extension and provided no explanation.

Sept. 16, 2009: The applicant's representative, Mr. Norman, wrote to counsel for Hopewell and Hargreaves, Mr. Bruce, (but not to counsel for Mr. Sivret, Mr. del Junco) seeking consent for an "indefinite adjournment" of the CRC. He advised Mr. Bruce that the applicant had told his offices on July 14, 2009 that he was travelling to Nigeria for a family emergency.

Sept. 21, 2009: After a number of attempts to discuss this matter with Mr. Norman, Mr. Bruce successfully spoke to him on this day. Mr. Norman advised that his offices had not heard from Mr. Okunbor since July 14th and that when he recently tried to call Mr. Okunbor, the phone number he had for him was no longer in service. As set out in the correspondence from Mr. Norman dated September 16, 2009 and counsel for the respondent Hopewell Logistics dated September 22, 2009 Mr. Norman could not confirm where Mr. Okunbor was or why Mr. Okunbor was not in contact with him. Mr. Norman could only say that Mr. Okunbor had not contacted him and that the number he had for him was no longer in service.

Sept. 29, 2009: Mr. Norman advised the Tribunal that he would not be attending the CRC because he did not have instructions to do so.

October 5, 2009: Neither Mr. Norman nor the applicant attend at the CRC. The respondents were in attendance with witnesses and were prepared to proceed.

October 6, 2009: Mr. Norman forwarded a copy of a doctor's note dated October 5, 2009 which suggests that while the applicant has returned to Toronto and he is "weak and unable to attend court today." Mr. Norman failed to advise whether he was still retained, how long the applicant had been back in the country, when he first became ill and whether he had any instructions to make any submissions with respect to the Application.

Law and Analysis

5Rule 1.1 of the Rules for Transitional Applications confirms that section 53(3) applications are designed to "facilitate an accessible process and to ensure a fair, just and highly expeditious process...".

6Rule 3.1 allows the Tribunal to make a final determination of an application without further notice to any person who cannot be contacted by the Tribunal according to the contact information provided to the Tribunal.

7The Tribunal attempted on several occasions to contact the applicant directly and through his representative. The applicant failed to comply with his obligation to maintain contact with the Tribunal and, it would appear, his representative did not have a means to contact him after July 14, 2009.

8The Tribunal's Rules requiring disclosure and production also support the objectives of fair just and highly expeditious process. The applicant failed at every turn to comply with its obligation in this regard. Furthermore, the Tribunal's Rule 3.3 states that:

Where a party fails to deliver material to another party or person as required by these Rules, the Tribunal may refuse to consider the material, or may take any other action it considers appropriate,

9The Tribunal has dismissed applications where the Tribunal is satisfied that the applicant had notice of the CRC and failed to attend. See for example Noronha v. Castillo, 2009 HRTO 856; Kaczmarczyk v. FAG Aerospace, 2009 HRTO 667; McCombs v Osprey Media Group, 2009 HRTO 669; Hall v Southern Ontario Waste, 2009 HRTO 816.

10In this matter the applicant and his representative knew as early as July 14, 2009 that he was leaving the country. If there was any chance that applicant would not have been back for the October hearing, a Request to adjourn could have been made on a timely basis. The applicant has failed to comply with his responsibilities to disclose and produce materials in a timely manner and failed to comply with the Tribunal's directions to comply with its Rules. Neither the applicant nor Mr. Norman made any attempt to seek an adjournment of the CRC date or to advise the Tribunal in a timely way of his inability to attend on that date. The doctor's note produced by Mr. Norman on October 6, 2009, the second scheduled day of hearing, does not address when the applicant became ill or why he was unable to advise the Tribunal of his condition until after the scheduled hearing date had passed. Based on the facts of this case, I am satisfied the applicant abandoned the Application and have dismissed it on this basis.

Abuse of Process

11Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 ("SPPA") states that "a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes."

12The respondents wish the Tribunal to find not only that the applicant abandoned his Application, but that his entire course of conducting the Application was an abuse of process. In the circumstances I agreed to consider these arguments.

13In Ouwroulis v New Locomotion, 2009 HRTO 335 at paras 4-7, the Tribunal stated:

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.

Decision

14The Tribunal, and in particular the transition process, has been set up to provide Ontarians with a fair, just and highly expeditious process for the resolution of human rights disputes. However, as the Tribunal noted in Ouwroulis access to the Tribunal's process and resources comes with responsibilities. In particular it is incumbent on an applicant to comply with the Tribunal's Rules and orders and to do so within the times set by the Tribunal.

15The applicant here has not done that. The applicant's course of conduct or, more particularly, lack of conduct or engagement in prosecuting his complaint is not appropriate. One can understand the need for extensions of time or adjournments for various reasons and emergencies. But requests for such accommodations should be made as soon as the need arises and the requesting party should be forthright and proactive in explaining the reason and suggesting a revised schedule. The applicant here has not done that. He missed every deadline without forewarning or explanation. I find that the applicant's conduct in failing to prosecute his claim was an abuse of process and would dismiss the Application on this basis as well.

16Before closing, I also wish to note that this is not a case of a self-represented party without experience in the Tribunal's processes. The applicant retained a paralegal who practices in the field, should be well versed in the Tribunal's Rules, requirements and jurisprudence and who is governed by the Law Society of Upper Canada and its Rules of Professional Conduct. As such Mr. Norman had a professional responsibility not only to his client, but also to the Tribunal and, in the new language of the Law Society, his fellow licencees, to treat them with candor, fairness, courtesy and respect.

17The Application is dismissed.

Dated at Toronto, this 8th day of December, 2009.

"Signed by"

_____________________________

Andrew M. Diamond Member