HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Agnes Fitzpatrick
Applicant
-and-
Barricks Gold Hemlo Mine and Pic River First Nations
Respondents
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Fitzpatrick v. Barricks Gold Hemlo Mine
AppearanceS BY
Agnes Fitzpatrick, Applicant ) No one appearing
Barricks Gold Hemlo Mine and ) Mireille Khoraych, Pic River First Nations, Respondents ) Counsel )
1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on March 16, 2010. The applicant alleges that she was discriminated in respect of employment on the basis of age. This Interim Decision addresses the applicant’s failure to participate in a scheduled conference call, to provide current contact information and to provide documents as requested by the Tribunal.
BACKGROUND
2On June 16, 2010, the Tribunal sent a Notice of Intent to Dismiss to the applicant stating that it appeared that the Tribunal may not have jurisdiction to process her Application because it was filed more than one year after the last incident of discrimination described in the Application and the applicant had not explained why the delay in filing was incurred in good faith and why the delay would not cause substantial prejudice to any person affected by the delay. This Notice directed the applicant to provide submissions within 30 days on why the Application would be within the Tribunal’s jurisdiction given the delay in filing. On July 16, 2010, the applicant provided her submissions by email to the Tribunal.
3On August 3, 2010, the Tribunal sent a Registrar’s letter to the applicant informing her that a conference call would be held to consider whether her Application should be dismissed on the basis of delay. The letter further notes that documents in the Application indicate that the Applicant may have signed a full and final release with respect to the issues which are the subject matter of the Application and that consequently the conference call would also consider whether there is a release that prevents the Application from continuing. The letter directs the applicant to provide to the Tribunal and to the respondent no later than 14 days before the conference call a copy of her complaint to the Employment Standards Branch referred to in her submissions. The letter further states that the applicant should provide information about why the filing of her Application was delayed and that she should identify the person or persons she consulted and the information they provided. The applicant has failed to do provide this requested information.
4On August 12, 2010, counsel for Barricks Gold Hemlo Mine wrote to the Tribunal to state that the applicant named “Barricks Gold Hemlo Mine contracted through Pic River First Nations” as respondent in her Application. Counsel indicated that these are two separate entities. In a letter dated October 6, 2010, counsel wrote that she would be representing both “respondents” at the scheduled conference call but that both reserved the right to take the position that they had not been properly named as respondents should the Application not be dismissed following the conference call.
5On August 26, 2010, the Tribunal issued a Notice of Conference Call to the parties indicating that the conference call was scheduled for October 20, 2010 at 2:00 p.m.
6On October 18, 2010, counsel for the respondents wrote to the Tribunal to state that documents sent by the respondents to the applicant by courier to the address provided by the applicant in section 2 of her Application had been returned. Counsel indicated that the courier had been informed that the applicant and/or her Alternative Contact had moved from the address provided by the applicant in her Application and that attempts to reach the applicant at the telephone number the applicant had provided were unsuccessful as it appeared that this telephone number was no longer in service. Counsel submitted that the applicant had not advised the Tribunal or the respondents of her current contact information as required by the Tribunal’s Rules and that this was evidence that the applicant had abandoned her Application. Counsel further submitted that the fact that applicant had failed to provide the Tribunal or the respondents with the materials requested by the Tribunal in its August 3, 2010 letter was further evidence of the applicant‘s intention to abandon her Application. Counsel requested that the Tribunal dismiss the Application on the grounds that it had been abandoned.
7On October 19, 2010, the Tribunal emailed the parties to indicate that the conference call would proceed on October 20, 20010 as scheduled and that if the applicant failed to appear on the call the Tribunal would consider the request to declare the Application abandoned.
8On October 20, 2010, the conference call proceeded with representatives for Barricks Gold Hemlo Mine and Pic River First Nations and their counsel present. The applicant did not appear. After waiting 15 minutes, I proceeded to hear submissions from counsel who requested that the Tribunal declare the Application abandoned. I reserved my decision.
9After the completion of the conference call I received an email from the applicant sent to the Tribunal’s Registry at 2:18 p.m. on October 20, 2010 stating “…about the conference call, I have been waiting since 2:00 p.m. I sent my phone number a few times by email and voice mail. I’m not quite sure what is going on”.
DECISION
10I am satisfied that the applicant was attempting to participate in the conference call but did not appear to understand that she was required to connect to the conference call by dialling in to a telephone number as was indicated in the Notice of Conference Call. Be that as it may, I remain concerned about whether the applicant has kept the Tribunal and the respondents apprised of her current contact information as required by Rule 1.13 the Tribunal’s Rules of Procedure, why the applicant appears not to have provided information requested by the Tribunal as required by Rule 1.7(p) of the Tribunal’s Rules of Procedure and, on this basis, whether the applicant is pursuing her Application.
11Accordingly, the applicant is directed to provide the Tribunal and counsel for the respondents with written submissions confirming her updated contact information including mailing address, telephone number and email as well as providing the information requested by the Tribunal in its August 3, 2010 letter. The applicant must also explain why she has not, to date, provided her current contact information and the information requested by the Tribunal in its August 3, 2010 letter.
12The applicant must provide this information within 10 days of the issuing of this Interim Decision. Failure to provide this information including a satisfactory explanation for the applicant’s failure to date to provide the required information may result in the Tribunal declaring the applicant’s Application abandoned.
13I remain seized of this matter.
Dated at Toronto, this 21^st^ day of October, 2010.
“Signed by”
Eric Whist
Vice-chair```