Tambie v. 1657587 Ontario, 2010 HRTO 332

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Terrieann Tambie

Applicant

-and-

1657587 Ontario Inc. and Katina Franklin

Respondents

DECISION

Adjudicator: Judith Keene

Date: February 12, 2010

Citation: 2010 HRTO 332

Indexed as: Tambie v. 1657587 Ontario

APPEARANCES

Terrieann Tambie, Applicant ) No one appearing

1657587 Ontario Inc. and Katina Franklin, Respondents ) Mohsen D. Ameli, Counsel

1This Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), was scheduled for a hearing on February 11 and 12, 2010. The Application alleges discrimination in respect of employment on the basis of pregnancy. The respondents deny the allegations.

2The respondents' counsel attended the first day scheduled for the hearing in accordance with the Confirmation of Hearing notice. The applicant did not appear. I delayed the commencement of the hearing for over half an hour, but the applicant did not attend, and did not contact the Tribunal.

2The Tribunal sent the parties a "Confirmation of Hearing" Notice (the "Confirmation of Hearing") on October 7, 2009. The Confirmation of Hearing was sent to the mailing address provided by the applicant and to which all correspondence related to the Application had previously been sent. It was not returned as undeliverable.

3I am satisfied that the applicant had proper notice of the hearing. Neither the applicant nor the respondents filed any documents or witness list in accordance with the Rules.

4At the hearing, I invited submissions from the respondents on how I should deal with the applicant's failure to appear. The respondents requested that the Tribunal dismiss the Application. The respondents also requested that I rule on a submission that the Tribunal had no jurisdiction to deal with the Application, because of an alleged determination by an Employment Standards Officer. Finally, the respondents asked that I award costs against the applicant.

5Having considered the respondents' requests, I ruled orally that it was not plain and obvious to me that the Tribunal had no jurisdiction over the matter. I also ruled that the Application was dismissed, with written reasons to follow. My reasons are set out below.

DECISION

6In respect of the jurisdiction argument, the evidence tendered by the respondents was correspondence on Ministry of Labour letterhead signed by an individual identifying himself as an Employment Standards Officer, and a document headed "Narrative Report". The topic of the documents is a claim, apparently by the applicant and apparently in respect of, among other things, unpaid wages and vacation pay, and termination pay in lieu of notice. The Narrative Report states that unsuccessful attempts were made to contact the claimant concerning the details of her claim, narrates the employer's position in regard to the claimant's employment status, and concludes that the claimant is not an employee covered by the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (the "ESA"), "based on the best available evidence".

7Even as evidence that the applicant was not an employee for the purposes of the ESA, the documents cannot be given a great deal of weight. The author of the documents clearly indicates that his conclusion was based on the evidence of only one party to a dispute, because the other party was unavailable. That party was also unavailable in this proceeding.

8More importantly for the purposes of this proceeding, a conclusion of an Employment Standards Officer that an individual is not an "employee" cannot of itself dispose of the issue of whether there has been a breach of section 5 of the Code "with respect to employment". Useful review of the operative principles of statutory interpretation in this regard is given in Szabo v. Poley, 2007 HRTO 37, and Skelly v. Assist Realty Ltd. (No. 1) (1991), 1991 CanLII 13156 (BC HRT), 16 C.H.R.R. D/1 (B.C.C.H.R.).

9The applicant's failure to attend, without notice or explanation, is the reason for the dismissal of this Application. The applicant commenced a legal proceeding when she filed this Application with the Tribunal. It is the applicant's responsibility to participate in this proceeding by taking the necessary steps to pursue it, including attending the hearing scheduled to consider the allegations raised in the Application. Filing an Application engages the use of the Tribunal's administrative, mediation and adjudicative resources in the processing of the matter. Filing an Application also results in respondents having to invest resources and time to respond to the Application and prepare for a hearing. For these reasons, an application must be treated seriously.

10In the absence of any correspondence or communication from the applicant to explain her failure to appear at the hearing and as a result of her failure to appear and provide any evidence in support of his allegations, the Application is dismissed. The Tribunal has no jurisdiction to make costs awards.