HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jean Gardiner

Applicant

-and-

1708840 Ontario Inc. c.o.b. as Mr. Rooter London; 2028493 Ontario Inc.;

1394493 Ontario Inc. c.o.b. as Mr. Rooter Cambridge;

1394492 Ontario Inc. c.o.b. as Hy-Pro Plumbing and Alan Little

Respondents

DECISION

Adjudicator: Alison Renton

Date: March 26, 2010

Citation: 2010 HRTO 668

Indexed as: Gardiner v. 1708840 Ontario

APPEARANCES BY

Jean Gardiner, Applicant ) On her own behalf

1708840 Ontario Inc. c.o.b. as Mr. Rooter London; )

2028493 Ontario Inc.; )

1394493 Ontario Inc. c.o.b. as Mr. Rooter Cambridge; ) Frank D. Carere, Counsel

1394492 Ontario Inc. c.o.b. as Hy-Pro Plumbing )

and Alan Little, Respondents )

[1] The applicant filed an Application on February 2, 2009, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the grounds of sexual harassment and sexual solicitation. The respondents deny the allegations in their Response.

[2] On March 25, 2010, I issued an oral ruling dismissing the Application with reasons to follow. These are my reasons.

[3] A hearing was scheduled for March 22, 23, 24 and 25, 2010, in London and took place on March 22 and 23. On March 24, the applicant arrived at the hearing and indicated that she could not proceed because she had a migraine. The hearing for March 24 was adjourned and a Case Assessment Direction (“CAD”) was issued which stated:

A hearing in this matter was scheduled for March 22, 23, 24, and 25, 2010. Upon request of the respondents’ counsel, and on consent of the applicant, the Tribunal agreed that the March 24 hearing would be adjourned at noon for the respondents’ counsel to attend a funeral. At the hearing on March 23, the parties agreed that an additional hearing date was required, and advised they were available on Friday, March 26. Accordingly, on March 23, the Tribunal scheduled another hearing date for Friday, March 26, and the parties were sent a Confirmation of Hearing letter. At the March 23 hearing, the parties also agreed to start the hearing on March 24 at 8:30 am.

On March 24, the parties attended at 8:30 am. The applicant advised that she had a migraine, anticipated vomiting and was unable to proceed with the hearing. She indicated that her migraines could last two days. The applicant declined the Tribunal’s suggestion that she take 30 or 60 minutes of quiet time to see if she felt better enough to proceed. The applicant abruptly left the hearing and indicated that the hearing could proceed in her absence.

After the applicant left, the respondents submitted that the Application be dismissed because of the applicant’s departure. The respondents submitted that the applicant declined the Tribunal’s suggestion of some quiet time and noted the significant costs the respondents had incurred in attending the hearing with counsel, which they could not recover from the applicant. The respondents expressed concern about attending the March 25 hearing and not having the applicant show up.

The Tribunal dismissed the respondents’ request that the Application be dismissed on the basis of the applicant’s stated medical condition. The Tribunal indicated that one of its staff would attempt to contact the applicant about whether or not she could attend the hearing scheduled for March 25. If the applicant indicated she would not be able to attend the March 25 hearing because of her medical condition, both the March 25 and March 26 hearing dates would be cancelled and the Tribunal would schedule 3 new hearing dates. The Tribunal also indicated that it would update the respondents’ counsel and the personal respondent later in the day about whether or not the hearing would proceed on March 25 to prevent any unnecessary attendance on March 25.

Subsequent to the adjournment, the applicant emailed the Tribunal to advise that she had a migraine and had to leave the hearing. She said that the Tribunal could proceed in her absence and noted she had testified and submitted her documentation as exhibits. She did not copy the respondents’ counsel on her email and is directed to do so.

The Tribunal will not be proceeding in the applicant’s absence. The role of the Tribunal is to adjudicate the issues raised in the Application, Responses and Reply and not to conduct an investigation or be an advocate or representative for a party. The applicant’s evidence has not been concluded as she is still under cross-examination by the respondents’ counsel and her witnesses, if she chooses to have witnesses, have not testified.

If the applicant is seeking an adjournment for the March 25 scheduled hearing because of the medical reason she expressed earlier today, she is required to immediately make this request to the Tribunal, by email, and copying the respondents’ counsel. If the applicant does not make this request by 3:00 pm, the hearing scheduled for March 25 will continue as scheduled and if the applicant does not attend the hearing, the Tribunal may dismiss the Application as being abandoned.

If the applicant does request an adjournment because of the medical reason expressed earlier today, the hearing scheduled for March 25 and March 26 will be cancelled and the Tribunal will schedule 3 new hearing dates after consulting with the parties with respect to their availability, by issuing a new Confirmation of Hearing Notice to the parties.

[4] One of the Tribunal’s staff attempted for several hours to reach the applicant by telephone on March 24, but was unable to do so because the applicant’s telephone line was continuously busy. Despite the Tribunal’s directions to the applicant in the CAD, the applicant did not send her March 24 email to the respondents’ counsel (as he confirmed on March 25) and did not respond to the 3:00 p.m. deadline requesting an adjournment. The Tribunal sent an email to the parties after 4:00 p.m. stating that the March 25 hearing would proceed as scheduled as the applicant had not responded to the CAD.

[5] At 7:13 p.m. on March 24, the applicant emailed the Tribunal’s Registrar, but did not copy the respondents’ counsel or his clients. The email stated:

This is to advise that the applicant informed the adjudicator that the hearing could proceed without the applicant as all my evidence has been given. The adjuducator [sic] did not mention anything about cost and the hearing can go on without the applicant because I am the only one who has testified and given evidence so far. I have provided my documents and I have been cross examined. Therefore two days of testimony revolved around the Applicant. The reason the hearing was scheduled for 4 days was because of the length of the list of witness[es] that the Respondent required to be heard. They can be heard in my absence therefore I am requesting that the hearing not be adjourned but proceed in the absence of the Applicant as my migraines which are very severe last for two sometimes 3 days.

[6] On March 25, the respondents (via their owner, the personal respondent) and their counsel, having not received the applicant’s email from the evening of March 24, travelled from the Kitchener/Cambridge area and attended the hearing before the Tribunal. The Tribunal said that the Application would be dismissed because the applicant had not attended and the respondents made submissions in further support of the dismissal including a submission that the applicant’s conduct amounted to an abuse of the Tribunal’s process.

[7] The CAD stated that the applicant had until 3:00 p.m. to contact the Tribunal to indicate if she was seeking an adjournment for medical reasons for the March 25 hearing. The applicant did not contact the Tribunal by that deadline. The Tribunal could not reach the applicant because her telephone was busy and it updated the respondents’ counsel and the personal respondent, as well as the applicant, around 4:00 p.m. to advise that the hearing would be proceeding.

[8] When the applicant did eventually contact the Tribunal, after its offices were closed, she responded to the CAD by indicating, as she had earlier in the day, that she had completed her evidence and that the hearing could proceed in her absence. She did not indicate why she was responding after the 3:00 p.m. deadline. Because she did not copy the respondents or their counsel, they were required to travel to London on March 25 as they were unaware that the applicant had emailed the Tribunal again. While she indicated that her migraines could be very severe and last two to three days, she did not say that she was still unable to attend the hearing because she was still suffering from a migraine.

[9] As noted in the CAD, the applicant’s evidence had not been concluded and at the end of the hearing date on March 24, the applicant was still being cross-examined by the respondents’ counsel. On March 24, the applicant attended the hearing without the respondents’ Rule 16.3 documents (the “production documents”) which the respondent sent to her and the Tribunal in December 2009. The applicant advised the Tribunal she forgot them at home, and the Tribunal loaned its copy to her.

[10] Before the day was adjourned, the respondents’ counsel asked the applicant questions pertaining to the salary increases that the respondents allege the applicant had given herself without authorization between 2005 and 2009. Over the objection of the applicant, the Tribunal had admitted into evidence a document prepared by the respondents, which was part of the production documents, and which charted the alleged unauthorized salary increases. During her cross-examination, the applicant testified that she had not previously reviewed these parts of the respondents’ production documents because she considered them to be irrelevant. The respondents’ counsel requested that the Tribunal order the applicant to review the production documents, which the Tribunal declined to do. The Tribunal suggested that the applicant spend time that evening reviewing the production documents, specifically the payroll documentation, so the cross-examination could continue the next day. The hearing was then adjourned until the next hearing day, March 24, which, as set out above, did not proceed.

[11] Not only has the applicant’s evidence not been completed, but she still had not complied with the order contained in the Tribunal’s Interim Decision, [2010 HRTO 498](https://www.minicounsel.ca/hrto/2010/498), to produce her medical and financial records (“the production order”). The production order was confirmed by the Tribunal during the hearing on March 22.

[12] As indicated in the CAD, the Tribunal would not be proceeding in the applicant’s absence. The Tribunal’s role is to adjudicate the issues raised in the Application, Response and Reply and not to conduct an investigation or be an advocate or representative for a party. The applicant’s evidence was not completed, she had not complied with the production order or the directions in the CAD, her witnesses had not testified (although one attended again on March 25), the respondents’ evidence had not been called, and the applicant did not indicate she could not attend the March 25 hearing because of a medical condition. Where an applicant fails to attend a hearing, the Tribunal will normally dismiss an Application (see [Vizcaya v. University of Toronto, 2010 HRTO 7](https://www.minicounsel.ca/hrto/2010/7) and [Edward v. Moda at Home, 2009 HRTO 568](https://www.minicounsel.ca/hrto/2009/568)). The applicant failed to attend the hearing on March 25 or to seek an adjournment of that date.

[13] For all these reasons the Application is dismissed.

Dated at Toronto, this 26th day of March, 2010.

“Signed by”

Alison Renton

Vice-chair