Briggs v. Niagara Falls (City), 2010 HRTO 2244

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kelly Briggs Applicant

-and-

Corporation of the City of Niagara Falls and Ray Anderson Respondents

DECISION

Adjudicator: Mark Hart Date: November 10, 2010 Citation: 2010 HRTO 2244 Indexed as: Briggs v. Niagara Falls (City)

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code), dated June 16, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on June 4, 2007.

2The applicant alleges that he experienced discrimination in employment because of disability contrary to sections 5 and 9 of the Code, in relation to how he was treated as a volunteer firefighter for the respondent municipality following an injury he suffered in training in July 2006 and the subsequent revocation of his status as a volunteer firefighter in March 2007.

3By letter to the parties dated May 10, 2010, the Tribunal provided notice that the hearing in this matter was scheduled for November 22, 2010. The applicant was advised that by June 9, 2010, he was required to serve and file a statement of any additional facts that he intended to rely upon at the hearing and a description of the remedies he sought. By that date, he also was required to make disclosure to the respondents of all arguably relevant documents (except where privilege is claimed) including all relevant medical information. By no later than November 2, 2010, the applicant was required to serve and file a list of his witnesses and a description of what each witness would say and a list of all documents that he intended to rely upon at the hearing. A copy of these documents also was to be filed with the Tribunal at that time.

4The Tribunal’s May 10, 2010 letter was sent to the applicant’s counsel, who is on record as representing the applicant and is identified as applicant’s counsel in the Application.

5On June 17, 2010, the respondents served and filed a Request for Order seeking, among other things, an order precluding the applicant from relying upon any documents at the hearing, as no documents had been disclosed by the applicant in accordance with his obligations under the Rules; or, in the alternative, an order requiring the applicant to comply with his disclosure obligations. This Request was served on the applicant’s counsel.

6The Tribunal sent a letter dated June 21, 2010 acknowledging receipt of the respondents’ Request and advising the applicant that he had until July 1, 2010, to serve and file any submissions in response. This letter was sent to applicant’s counsel. No materials were received from the applicant in response to the respondents’ Request.

7I issued an Interim Decision dated September 27, 2010, 2010 HRTO 1960, in relation to the respondents’ Request. In this Interim Decision, I required the applicant to comply with his obligation to disclose all arguably relevant documents, including all relevant medical documentation, within 14 calendar days. I further stated that, should the applicant fail to do so, I would be prepared to consider whether this Application should be dismissed in its entirety as an abuse of process. This Interim Decision was sent to applicant’s counsel by fax, and directly to the applicant by courier.

8The applicant failed to make disclosure in accordance with my Interim Decision, and did not respond to my Interim Decision in any fashion. By letter dated October 13, 2010, the respondents noted the applicant’s failure to make disclosure as required by my Interim Decision and the Tribunal’s Rules, and requested that this Application be dismissed as an abuse of process.

9By letter dated November 1, 2010, the Tribunal wrote to the parties acknowledging receipt of the respondents’ correspondence and noting the respondents’ statement that the applicant had not complied with his disclosure obligations. This letter stated that if the applicant still intended to proceed with his Application at the hearing scheduled for November 22, 2010, he was required to contact the Tribunal immediately to confirm this and by no later than November 8, 2010, he was required to provide submissions in response to the respondents’ request to dismiss and to provide an explanation for his failure to comply with his obligations under the Rules and the Tribunal’s Order. The applicant was advised that if no submissions were received by that date, this Application may be dismissed as abandoned or as an abuse of process. This letter was sent to applicant’s counsel and directly to the applicant by email and mail.

10No response was received from the applicant in response to the Tribunal’s correspondence, and to date the applicant has not contacted the Tribunal to confirm his intention to proceed with this Application. In addition, the applicant has not provided his list of witnesses, a description of his witness’ intended evidence or the documents he intends to rely upon at the hearing, which he was required to do by November 2, 2010.

11Accordingly, this Application is dismissed as abandoned, and the hearing scheduled for November 22, 2010 is cancelled. In addition, in light of the applicant’s repeated failure to make disclosure of arguably relevant documents, including relevant medical documentation, despite repeated notice of his obligations under the Rules and repeated opportunities for him to comply with his obligations, and in light of his failure to comply with my Order dated September 27, 2010, I also find that this Application should be dismissed as an abuse of process.

12Finally, I note that, in my Interim Decision, I implied that the respondents had not complied with their obligations under the Rules to file a statement of additional facts that they intended to rely upon and a response to the remedies requested on the face of the Application. In fact, by letter dated June 21, 2010, the Tribunal had suspended the respondents’ requirement to comply with these obligations pending determination of the respondents’ Request for Order and/or further direction from the Tribunal. It was my error in not referencing this letter in my Interim Decision, and I apologize to the respondents and their counsel for this oversight.