Bernauer v. Suga Rak, 2009 HRTO 371

Human Rights Tribunal of Ontario

B E T W E E N:

Krystle Bernauer

Applicant

-and-

Michelle Suga Rak, Gregory Hasen and John Tomc

Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: March 31, 2009 Citation: 2009 HRTO 371 Indexed as: Bernauer v. Suga Rak

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code") alleging discrimination in employment on the grounds of disability, family status, record of offences and association with a person identified by a ground under the Code. The Application was filed on July 29, 2008. The matter is scheduled for hearing on May 14, 2009.

2This Interim Decision addresses a Request for Order During Proceedings filed by the respondents, as well as an issue regarding the Tribunal's ongoing inability to contact the applicant.

BACKGROUND

3The parties consented to mediation and a mediation was scheduled for December 10, 2008. Notices of Mediation were sent to the parties at the addresses provided by the parties on the Application and Responses.

4On November 18, 2008 the respondents wrote to the Tribunal to indicate that they were unable to attend the mediation and asked that it be re-scheduled. The respondents provided a number of alternative dates including February 2, 2009.

5The Tribunal attempted to contact the applicant to inform her that the mediation scheduled for December 10, 2008 had been cancelled and to determine her availability on an alternative date. The Tribunal left four voice messages on both the home telephone number and the cell number provided by the applicant telling the applicant of the cancelled mediation and asking her to contact the Tribunal about re-scheduling the mediation. The applicant did not contact the Tribunal as requested. The Tribunal proceeded to re-schedule the mediation for February 2, 2009. Notices of Mediation were sent to the parties at the addresses provided by the parties on the Application and Responses.

6The applicant failed to appear for the February 2, 2009 mediation. The applicant did not contact the Tribunal before or after February 2, 2009 to explain why she could not attend the mediation.

7On February 19, 2009 the Tribunal sent Confirmation of Hearing letters to the parties indicating that a hearing had been set for May 14, 2009. Two Confirmation of Hearing letters were, in fact, sent to the applicant at the address identified on her Application, both were returned to the Tribunal.

8On March 2, 2009 the respondents filed a Request for Order During Proceedings asking the Tribunal to review the Application and to dismiss it on the grounds that the Application has nothing to do with a violation of human rights. A copy of this request was served by the respondents on the applicant at the address she provided on her Application.

9On March 24 and March 25, 2009 the Tribunal again attempted to contact the applicant. The Tribunal left voice messages on the applicant's home telephone and cell phone asking the applicant to contact the Tribunal. She has not done so.

REQUEST TO DISMISS

10The applicant states in her Application that she believes the treatment she received while working for the respondents was discriminatory as it was related to her disabilities and those of her son. She has provided an account of events in support of her allegations. The respondents do not agree that their conduct was discriminatory, and dispute the applicant's account as set out in the Application. On the basis of the materials before me, I find that the question of whether the Application has merit is not an issue that should be decided at this stage, but is a determination to be made following an oral hearing. Consequently the Request to dismiss is denied.

INABILITY OF THE TRIBUNAL TO CONTACT THE APPLICANT

11However, as noted above, the Tribunal has been unable to contact the applicant at the address or telephone numbers provided in the Application. Nor has the applicant advised the Tribunal of a change of address or contact information as required by Rule 1.13. of the Tribunal's Rules of Procedure.

12This raises some concern as to whether the applicant continues to be interested in pursuing her Application.

13The applicant must provide the Tribunal, no later than April 14, 2009, a current mailing address and telephone numbers. The applicant must also confirm that she remains interested in proceeding with her Application and will fulfill her responsibilities and participate in the processes required under the Rules.

14The applicant should, at the same time, provide this updated contact information to the respondents.

15If the applicant fails to provide current contact information as directed, and confirm that she wishes to proceed with the Application, the Tribunal will cancel the hearing date and deem the applicant to have abandoned the Application.

16This Interim Decision shall be sent to the applicant by regular mail and courier at the mailing address provided in the Application.

17I am not seized of this matter.