Ignacio Drenic v. The Governing Council of the Salvation Army in Canada, 2010 HRTO 1868

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ignacio Drenic

Applicant

-and-

The Governing Council of the Salvation Army in Canada

Respondent

Reconsideration DECISION

Adjudicator: Ken Bhattacharjee

Date: September 13, 2010

Citation: 2010 HRTO 1868

Indexed as: Drenic v. Governing Council of the Salvation Army

WRITTEN SUBMISSIONS BY

Ignacio Drenic, Applicant ) Self-represented )

INTRODUCTION

1The applicant filed a Request for Reconsideration on March 15, 2010, which requested reconsideration of the Tribunal’s Decision, 2010 HRTO 514, issued March 8, 2010, that dismissed his Application.

BACKGROUND

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on September 17, 2008.

3On or about October 16, 2009, upon the direction of the Tribunal’s Executive Director, the applicant, who had multiple Applications before the Tribunal, submitted a written undertaking to treat the Tribunal’s staff, adjudicators and the other parties in the proceeding with respect and courtesy, and not to use any offensive, abusive, profane, lewd or threatening language.

4On November 3, 2009, the Tribunal issued a Confirmation of Hearing Notice to the parties, which informed them that the hearing was scheduled for March 8, 2010 at 655 Bay Street, 14th Floor, Toronto, Ontario, commencing at 9:30 a.m. The Notice also informed them that requests for adjournments would be dealt with in accordance with the Tribunal’s Information Bulletin: Scheduling of Hearings and Mediations, Rescheduling Requests, and Request for Adjournments. The Information Bulletin in effect at that time provided that requests to reschedule a hearing must be made within five (5) days of receiving the Notice, and thereafter, requests for adjournments would only be granted in extraordinary circumstances, such as the illness of a party, witness or representative.

5On March 2, 2010, the respondent filed a Request for Order During Proceedings, which requested that the Tribunal order the dismissal of the Application without a hearing because the applicant breached his undertaking to the Tribunal.

6On March 4, 2010, the applicant filed a Request for Order During Proceedings, which requested that the Tribunal adjourn the hearing in order to allow him time to respond to the respondent’s March 2 Request for Order and to retain legal counsel. He also requested that the Tribunal provide direction to him as to when one of his witnesses would testify at the hearing, and requested that the Tribunal order another witness to attend the hearing.

7On March 5, 2010, the Tribunal issued a Case Assessment Direction (“CAD”), which stated:

The applicant’s Request that the Tribunal adjourn the hearing is denied. The applicant’s reasons for his Request are not an extraordinary circumstance as defined in the Tribunal’s Information Bulletin.

The hearing will proceed in the following manner on March 8, 2010:

(a) I will make an introductory statement on the hearing process.

(b) The parties will make their opening statements.

(c) I will address the preliminary issues raised by the parties.

(d) If I do not dismiss the Application on a preliminary basis, I will address the order in which the parties’ evidence will be heard.

(e) The parties will present their evidence.

(f) The parties will make their closing statements.

The applicant’s witnesses should be present to testify in the late morning and early afternoon. The respondent’s witnesses should be present to testify in the afternoon.

8On March 8, 2010, the respondent attended the hearing, but the applicant did not. The Tribunal’s Decision dismissed the Application for the following reasons:

The Tribunal issued a Case Assessment Direction dated March 5, 2010, which denied the applicant’s Request to adjourn the hearing.

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

I commenced the hearing at 10:00 a.m. and invited submissions from the respondent’s counsel on how to proceed in light of the applicant’s failure to appear at the hearing.

The respondent’s counsel requested that the Tribunal dismiss the Application on the basis that the applicant received notice of the hearing, but failed to attend. He also requested that the Tribunal dismiss the Application as an abuse of process because the applicant repeatedly breached the terms of his written undertaking to the Tribunal, dated October 16, 2009 to treat the Tribunal’s staff, adjudicators and the other parties in the proceeding with respect and courtesy, and not to use any offensive, abusive, profane, lewd or threatening language.

I am satisfied that the applicant was aware that the hearing was scheduled for March 8, 2010, but decided not to attend.

The applicant commenced a legal proceeding when he filed his Application with the Tribunal. 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 respondent to provide evidence in response to allegations.

In the absence of the applicant and any explanation for his non-attendance, the Application is dismissed as abandoned. In view of my Decision, it is not necessary to decide whether the Application also should be dismissed because of an abuse of process by the applicant.

9At 10:46 a.m. on March 8, 2010 (after the hearing ended), the applicant sent a three-page e-mail to the Tribunal’s Executive Director, which asked him to “override” the CAD. The e-mail also stated that he was unable to attend the hearing because he had contracted “cold like symptoms” on March 6, and that medical evidence was forthcoming. To date, the applicant has not submitted any medical evidence.

10On August 12, 2010, the Tribunal issued a Decision in another case involving the applicant, Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667, which declared him to be a vexatious litigant, and requires him to seek leave of the Tribunal if he wants to file future Applications with the Tribunal. One of the factors that was taken into consideration in reaching this Decision was the fact that the applicant has filed 11 Applications, none of which have been upheld, and on four occasions, he commenced Applications and pursued them, but failed to attend hearings or case conferences.

RELEVANT LAW AND RULE ON RECONSIDERATION

11Section 45.7(1) of the Code provides that any party to a proceeding before the Tribunal may request that the Tribunal reconsider a final decision in accordance with the Tribunal rules.

12Rule 26.5 of the Tribunal’s Rules of Procedure states that reconsideration will not be granted unless the Tribunal is satisfied that:

a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

REQUEST FOR RECONSIDERATION

13In his Request for Reconsideration, the applicant submitted that the Tribunal’s Decision should be reconsidered in accordance with Rule 26.5 b), c) and d).

14In his reasons in support of his Request, he submitted that he had “cold like symptoms” that prevented him from attending the hearing, the Tribunal refused to provide him with an opportunity to respond to preliminary issues that were raised by the respondent just prior to the hearing, the Tribunal had not dealt with his appeal of the CAD to the Executive Director, the Tribunal’s Decision was based on what was said and directed by the respondent’s counsel, and the Tribunal failed to appropriately deal with the witness issues that he identified prior to the hearing.

15The applicant did not explain, and I do not see, how his reasons fall within Rule 26.5 b) and c). As such, I will only consider the applicant’s Request under Rule 26.5 d).

ANALYSIS AND DECISION

16In my view, the applicant has not established compelling and extraordinary circumstances for reconsideration of the Decision, which outweigh the public interest in the finality of decisions.

17I am not satisfied that the applicant was unable to attend the hearing because he had “cold like symptoms”. To start out with, the fact that these symptoms only arose after the Tribunal denied his request for an adjournment of the hearing is highly suspect. In addition, although he indicated that medical evidence to support his absence would be forthcoming, he never submitted any such evidence. Furthermore, his “cold like symptoms” did not prevent him from sending the Tribunal’s Executive Director a detailed, three-page e-mail one hour and fifteen minutes after the scheduled start time of the hearing.

18I am also not satisfied that the other reasons in the applicant’s Reconsideration Request, namely his disagreement with the Tribunal’s interim decisions and directions, justify his failure to attend the hearing.

19Finally, the applicant’s failure to attend this hearing cannot be divorced from the fact that he has filed 10 other human rights Applications, on three other occasions he has failed to attend hearings or case conferences, and the Tribunal has recently declared him to be a vexatious litigant.

20The Tribunal has a duty to dispose of applications fairly, justly and expeditiously: see section 40 of the Code and Rule 1.1 of the Tribunal’s Rules. This duty is not only in relation to applicants, but also in relation to respondents, who may expend significant resources responding to human rights Applications, and the public, whose tax dollars fund the Tribunal. In Ouwroulis v. New Locomotion, 2009 HRTO 335, 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.

21In the case at the hand, the respondent is a non-governmental, social service provider, which had to spend a significant amount of money, time and resources responding to the Application, and then attending a hearing that the applicant failed to show up for. The Tribunal also expended a significant amount of resources processing the Application and organizing the hearing.

22In all the circumstances, it is my view that it would neither be fair, just and expeditious nor in the public interest to reconsider my Decision to dismiss the Application.

ORDER

23The Request for Reconsideration is dismissed.