Ted Kaczmarczyk v. FAG Aerospace Inc. and Bruce Bowman, 2009 HRTO 667

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ted Kaczmarczyk

Applicant

-and-

FAG Aerospace Inc. and Bruce Bowman

Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Mark Hart

Date: May 21, 2009

Citation: 2009 HRTO 667

Indexed as: Kaczmarczyk v. FAG Aerospace

APPEARANCES BY

Ted Kaczmarczyk, Applicant ) No appearance

FAG Aerospace Inc. ) John Skinner,

and Bruce Bowman, Respondents ) Counsel )

DECISION

1This is an Application filed September 4, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint was filed with the Ontario Human Rights Commission on June 5, 2006.

2On December 23, 2008, the Tribunal sent a notice to the parties confirming that the Case Resolution Conference (hearing) in this matter was scheduled to proceed in London on March 9 and 10, 2009. Due to the inability of respondents’ counsel to attend the hearing on those dates and on consent of all parties, the hearing was re-scheduled to March 26 and 27, 2009.

3On March 25, 2009, the Tribunal was contacted by the applicant to indicate that he was unable to attend the hearing on the following day. At the same time, I fell ill and was unable to proceed on March 26, 2009. As a result, the parties were notified by the Tribunal that the hearing would not proceed on March 26, 2009. Unfortunately, this notification did not reach the respondents in time and they appeared at the hearing that day. As I was still ill and unable to attend the hearing on March 27, 2009, this hearing date also was cancelled.

4On April 3, 2009, the Tribunal sent a further notice to the parties re-scheduling the hearing in this matter to proceed on May 11, 2009 in London commencing at 9:30 am. This notice of hearing was sent to the applicant at the address that he had provided on this Application, consistent with other notices from the Tribunal that the applicant had received and responded to.

5In addition, on April 2, 2009, the Tribunal received an e-mail communication from the applicant in response to the Tribunal’s letter canvassing the parties for new dates for the hearing. In addition to the confirmation letter, the Tribunal responded to the applicant by e-mail on April 3, 2009 stating that the Case Resolution Conference would be held on May 11, 2009 at 9:30 am and indicating that a confirmation letter would be sent to the applicant. Nothing further was heard from the applicant.

6On May 11, 2009, I appeared at the hearing on London at 9:30 am and the respondents, their counsel and their witnesses were in attendance. The applicant did not appear. When the applicant still had not appeared by 9:45 am, I attempted to contact him by phone but there was no answer. I then contacted the Tribunal’s offices to see if any correspondence or other communication had been received from the applicant, and was told that no such correspondence or communication had been received.

7As I was aware that the previous hearing days in this matter had been scheduled to commence at 10:00 am rather than at 9:30 am, I stood the matter down until 10:15 am to see if the applicant appeared. When the applicant still had not appeared by 10:25 am, I advised the respondents that, in the absence of the applicant notifying the Tribunal of some exceptional circumstances that caused him to fail to appear, it was my intention to dismiss the Application.

8A Tribunal application is a legal proceeding commenced by the applicant. It is the applicant’s responsibility to attend the hearing and provide evidence in support of the allegations raised in the application. In the absence of such evidence, the Tribunal is unable to proceed with the application and there is no onus or responsibility on the respondents to provide evidence in response to allegations where the applicant has failed to appear at the hearing and no evidence has been provided by the applicant in support of his allegations.

9In the absence of any correspondence or communication from the applicant to explain his failure to appear at the hearing and as a result of his failure to appear and provide any evidence in support of his allegations, the Application is dismissed.