Farhan Aboubaker v. Toronto Transit Commission (Wheel-Trans), 2010 HRTO 559

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Farhan Aboubaker

Applicant

-and-

Toronto Transit Commission (Wheel-Trans)

Respondent

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Mark Hart

Date: March 15, 2010

Citation: 2010 HRTO 559

Indexed as: Aboubaker v. Toronto Transit Commission

APPEARANCES BY

Farhan Aboubaker, Applicant ) No appearance

Toronto Transit Commission (Wheel-Trans), ) Frances Gallop,

Respondent ) Counsel )

1The Application in this matter was filed on September 22, 2008 pursuant to s. 53(3) of the Ontario Human Rights Code (the “Code”). The underlying complaint that was filed with the Ontario Human Rights Commission alleges that the applicant experienced discrimination in respect of services because of disability and race contrary to s. 1 of the Code and that he also experienced reprisal contrary to s. 8 of the Code.

2The Case Resolution Conference (“hearing”) in this matter commenced on December 16, 2009. On consent of all parties, the matter proceeded with mediation-adjudication on that day, and no evidence was heard from any of the parties. Unfortunately, the matter was not resolved by the end of the day, and another hearing day needed to be arranged to hear the evidence in this matter.

3Before the end of the day on December 16, 2009, I raised a concern about how the various events set out in the complaint are alleged to amount to a violation of the Code, and afforded the applicant, who was then represented by counsel, an opportunity to file written particulars based upon the allegations in the complaint specifically setting out how the applicant alleges the Code was infringed in relation to each alleged incident. I then received written submissions from the respondent as to whether or not the applicant had made out a prima facie case of a violation of the Code in relation to the allegations raised and afforded the applicant an opportunity to respond to these submissions. My interim decision on these issues was released on February 26, 2010 (2010 HRTO 441).

4In that decision, I also addressed the applicant’s request for an adjournment of the hearing date which had been scheduled for March 11, 2010 after consultation with the parties. I denied the request for adjournment on the basis that the applicant had not put forward sufficient reasons to support the request. The Tribunal also sent a memo to the parties confirming that the hearing would proceed on March 11, 2010.

5Prior to my Interim Decision and after consultation with the parties, on December 23, 2009, the Tribunal sent a Notice to the parties confirming that the hearing in this matter was scheduled to continue on March 11, 2010.

6On March 11, 2010, I appeared at the hearing at 9:30 a.m. and the respondent, its counsel and its witnesses were in attendance. The applicant did not appear. I stood the matter down until 10:00 a.m. in the event that the applicant was simply late, and to afford him a reasonable opportunity to appear. In the intervening time, I contacted the Tribunal’s offices to see if any correspondence or other communication had been received from the applicant, and was told that no such correspondence or communication had been received.

7When the applicant still had not appeared by 10:10 a.m., I advised the respondent that, in the absence of the applicant notifying the Tribunal of some exceptional circumstances that caused him to fail to appear, it was my intention to dismiss the Application.

8A Tribunal application is a legal proceeding commenced by the applicant. 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 respondents to provide evidence in response to allegations where the applicant has failed to appear at the hearing and no evidence has been provided by the applicant in support of his allegations.

9In the absence of any correspondence or communication from the applicant to explain his failure to appear at the hearing and as a result of his failure to appear and provide any evidence in support of his allegations, the Application is dismissed.