Ritchy Dubé v. CTS Canadian Career College Inc. and Barbara Thibodeau, 2009 HRTO 689

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ritchy Dubé

Applicant

-and-

CTS Canadian Career College Inc. and

Barbara Thibodeau

Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: May 26, 2009

Citation: 2009 HRTO 689

Indexed as: Dubé v. CTS Canadian Career College

BACKGROUND

1On May 11, 2009, the Tribunal convened the first day of what was scheduled to be a one-day hearing in Sudbury in this matter. The applicant and organizational respondent attended. However, the personal respondent, Barb Thibodeau, failed to attend. She was aware of the hearing and had indicated prior to the hearing that she had no intention of appearing. In addition to being a party, Ms. Thibodeau is also a key witness for both of the other parties.

2Upon learning of Ms. Thibodeau’s intentions, the organizational respondent executed a summons to compel her to appear. In a Case Assessment Direction dated May 7, 2009, I noted that Ms. Thibodeau, as a party to these proceedings, was under an obligation to appear at the hearing. I also noted that her failure to comply with a summons could give rise to serious legal consequences, including the involvement of police.

NON-ATTENDANCE OF THE PERSONAL RESPONDENT

3In email correspondence to the Registrar, Ms. Thibodeau has argued that she had no knowledge of the Application and only recently became aware of it as a result of communications with counsel for the organizational respondent. Counsel advises that until March 2009, he believed he was representing both respondents in this matter. It is clear from correspondence between counsel and the Tribunal that counsel to the organizational respondent consistently represented that it had instructions to act on behalf of both respondents. All legal documents that were filed were expressly done so in the name of both the organizational and personal respondents.

4Despite what one might characterize as a misunderstanding between the two respondents about legal representation in these proceedings, it appears that as of some time in March 2009, Ms. Thibodeau became aware of the scheduled hearing and was given the opportunity to retain independent counsel and prepare her case. She was at liberty to seek any Order she may have seen fit to ensure she would be fully prepared and able to meet the case against her. She did not avail herself of these opportunities and now finds herself in breach of the Rules and of the summons.

5The applicant and the organizational respondent further advised me that Ms. Thibodeau has been uncooperative in facilitating delivery of Tribunal documents by refusing to disclose her current mailing address. The Tribunal is in possession of Ms. Thibodeau’s current address and she claims she has provided it to the organizational respondent, though counsel disputes this. The organizational respondent delivered its documents to Ms. Thibodeau at her current workplace, which was known to the organizational respondent. The applicant delivered documents to Ms. Thibodeau by email, which prompted an angry response, allegations that he was harassing her, and threats that she would contact the police should the applicant continue to communicate with her by email. Ms. Thibodeau has also claimed to feel threatened and harassed by the organizational respondent and its counsel in their attempts to communicate with her in advance of the hearing.

6It is appears that notwithstanding extensive communications over the past several weeks with the parties and with the Tribunal, as well as my Case Assessment Direction, Ms. Thibodeau continues to misunderstand the significance of these proceedings and the potential consequences of her refusal to cooperate.

7On May 21, 2009, the Tribunal received correspondence from counsel representing Ms. Thibodeau disclosing her address for service and confirming her email address. This Interim Decision addresses the implications of non-attendance at the hearing by someone who is a party as well as a summoned witness. It also sets timelines for the completion of the hearing. The fact that Ms. Thibodeau now has counsel will hopefully facilitate her cooperation in the process.

IMPLICATIONS OF NON-ATTENDANCE

8As an individual named as a respondent in the Application, Ms. Thibodeau is entitled to challenge the merits of the case against her by participating in the hearing: calling evidence, cross examining the other parties’ witnesses and making oral argument. She also has recourse to the mechanisms in the Rules if she has any process-related concerns. All of these options, however, require that Ms. Thibodeau respect the Tribunal process and participate in the hearing. She had ample opportunity to retain counsel to assist her, which she now has done.

9A Tribunal application is a legal proceeding. If a violation of the Code is found the Tribunal may order a respondent to make monetary compensation or other forms of restitution to the applicant and to take steps to future promote compliance with the Code. Where a party has been notified of a hearing and fails to attend, pursuant to Rule 3.13, the Tribunal may:

(a) proceed in the party’s absence;

(b) determine that the party is not entitled to further notice of the proceedings;

(c) determine that the party is not entitled to present evidence or make submissions to the Tribunal;

(d) decide the Application based solely on the materials before it;

(e) take any other action it considers appropriate.

10As Ms. Thibodeau ponders her next steps, she should give serious consideration to whether she is prepared to live with the consequences of having any or all of the above measures implemented by the Tribunal. She should also be aware that in addition to measures related to her non-attendance as a party, there are steps available to enforce compliance with a properly issued summons. That is, even if the hearing proceeds without her involvement as a respondent, if she refuses to comply with the summons to give evidence, she may be compelled to attend the hearing as a witness.

11The hearing has begun without Ms. Thibodeau. The parties have made opening statements and both parties have begun to call evidence. The hearing will continue with or without Ms. Thibodeau’s involvement. The Tribunal will be scheduling an additional two days to complete the hearing of this matter.

PRODUCTION OF DOCUMENTS

12On May 16, 2009, the applicant made a request for production from the organizational respondent of its “hiring policy and practices”. He also asked for disclosure of the organizational respondent’s witness list. These are documents to which the applicant is entitled under the Rules and which the respondent was under an obligation to disclose prior to the hearing. If the respondent has not fully complied with its disclosure obligations, it should produce the requested documents forthwith. All parties are reminded of their disclosure obligations under Rules 16 and 17. Failure to comply with disclosure obligations can result in being preventing from relying on documents or calling witnesses not identified and produced prior to the hearing.

ORDER

13In the light of the foregoing, I order that:

I. Within 10 days of this Interim Decision, the parties advise the Tribunal on which of the following dates they are available for hearing:

July 20, 21, 22, 23, 24, 27, 28, 29, 30, 31

August 4, 5, 6, 7, 10, 11, 12, 13, 14

II. Within 15 days of this Interim Decision, the organizational respondent either accede to the applicant’s production request or file submissions responding to the request.

III. Within 20 days of this Interim Decision, the personal respondent comply with Rules 16 and 17 regarding disclosure of documents and of witnesses.