Hoberg v. National Hockey League, 2010 HRTO 2251

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Scott Hoberg

Applicant

-and-

National Hockey League,

William Daly, Colin Campbell and Stephen Walkom

Respondents

CAsE RESOLUTION CONFERENCE DECISION

Adjudicator: Mark Hart

Date: November 12, 2010

Citation: 2010 HRTO 2251

Indexed as : Hoberg v. National Hockey League

AppearanceS BY

Scott Hoberg, Applicant ) Ann Burke, Counsel ) (appearing on first day ) only); ) No one appearing on ) second day

National Hockey League, ) Christopher Riggs and William Daly, Colin Campbell, ) John-Paul Alexandrowicz, and Stephen Walkom, Respondents ) Counsel )

1This is an Application made under s. 53(3) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), dated December 29, 2008. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on August 25, 2006.

2The applicant alleges that he experienced discrimination in employment because of disability contrary to sections 5 and 9 of the Code, in relation to an injury that he experienced as a referee working in the American Hockey League and the subsequent termination of his employment by the respondents.

3The Case Resolution Conference (“hearing”) in this matter commenced on July 19, 2010, and I heard evidence from the applicant’s surgeon, including cross-examination, and I commenced hearing the applicant’s evidence in chief. The hearing was not completed on that day.

4On July 21, 2010, the Tribunal sent a Notice of Continued Case Resolution Conference to the parties setting further hearing dates for November 4, 5 and December 3, 2010. In this correspondence, a schedule was established to receive submissions on various evidentiary issues that had arisen in the proceeding. In addition, by no later than October 15, 2010, the applicant was directed to serve and file a written statement of his evidence relating to his experience at games he officiated following his injury for which evidence had not already been given on the first day of hearing.

5The applicant was represented by counsel at the first day of hearing. By letter dated October 12, 2010, the Tribunal was advised that counsel would no longer be representing the applicant in this proceeding. No written statement of evidence was filed by the applicant by the October 15, 2010 deadline.

6The applicant did not appear at the hearing scheduled for November 4, 2010. The respondents were in attendance with counsel and witnesses. No communication was received by the Tribunal to explain the applicant’s failure to appear, and unsuccessful attempts were made by the Tribunal to reach the applicant by telephone. When the applicant still had not appeared by 10:30 a.m., the respondents were released for the day.

7That morning, the Tribunal sent a letter to the parties directing the applicant to contact the Tribunal in writing by 4:30 p.m. that day to provide an explanation for his failure to appear at the hearing and to indicate whether he and his witnesses intended to appear for the hearing scheduled for the next day commencing at 9:30 a.m. The letter also stated that Tribunal staff would be contacting the applicant by telephone as well as by sending this letter by e-mail, and would read the contents of this letter either directly to the applicant or onto his voicemail. This was done by Tribunal staff and the contents of the letter were read into the applicant’s voicemail. The letter further advised that if the applicant failed to respond to the Tribunal by 4:30 p.m. that day or failed to provide an adequate explanation for his failure to appear at that day’s hearing, the Tribunal may dismiss this Application as abandoned.

8No response was received from the applicant by 4:30 p.m. on November 4, 2010. Accordingly, the Tribunal sent a further letter to the parties and cancelled the hearing scheduled for November 5, 2010. The parties were advised that the Tribunal would be issuing its Decision in this matter shortly.

9As per my direction, Tribunal staff once again called the telephone numbers on file for the applicant to read this letter to him, as well as sending this letter to him by e-mail. At this time, Tribunal staff reached the applicant directly at one of his telephone numbers. The applicant orally stated that he was not aware that the hearing was proceeding on November 4, 2010 and had been in surgery that day. The applicant was instructed to provide this explanation in writing immediately. To date, no written explanation has been received from the applicant regarding his failure to appear at the hearing.

10I do not accept that the applicant was unaware that the hearing in this matter was proceeding on November 4, 2010. At the conclusion of the first hearing day on July 19, 2010, I provided dates in early November and December for the continuation of the hearing in this matter, which included the dates of November 4, 5 and December 3, 2010. The applicant stated that he was available on any of the dates provided, and the respondents were to advise within 24 hours as to their availability. This resulted in the confirmation of continued hearing that was sent to the parties two days later on July 21, 2010. This letter was sent to the applicant’s then legal counsel by fax and also was mailed directly to the applicant. The letter specifically set out deadlines for the filing of written submissions by the parties on evidentiary issues, which were complied with by all parties.

11While applicant’s former legal counsel removed herself as counsel in this matter on October 12, 2010, I do not accept that she would not have made the applicant aware of the upcoming hearing dates and his obligation to file a written statement of evidence by October 15, 2010. The applicant has provided no explanation to this Tribunal indicating that his counsel failed to make him aware of his upcoming obligations in this matter or the scheduled hearing dates.

12It is the applicant’s responsibility to attend the hearing in this matter and to present evidence in support of his allegations, and also to have his evidence tested by cross-examination. In the absence of the applicant fulfilling his obligation to do so and in the absence of any written explanation as to his failure to comply with his obligations or attend the continued hearing, this Tribunal has no proper or sufficient basis to support the applicant’s allegations or to continue this proceeding.

13Accordingly, I deem this Application to have been abandoned and dismiss the Application.