Sparling v. Future Shop, 2011 HRTO 1699

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Neil Sparling

Applicant

-and-

Future Shop, a division of Best Buy Canada Ltd.,

Michael Chuback and Olga Afinec

Respondents

DECISION

Adjudicator: Mark Hart

Date: September 15, 2011

Citation: 2011 HRTO 1699

Indexed as: Sparling v. Future Shop

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, dated June 30, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on February 18, 2005.

2The applicant alleges that he experienced discrimination with respect to employment contrary to ss. 5 and 9 of the Code, arising out of events leading to and including the termination of his employment with the respondent company on August 24, 2004.

3In addition to filing a human rights complaint, the applicant also commenced a civil action in the Superior Court for wrongful dismissal on August 18, 2006.

4By letter dated November 30, 2009, the Tribunal sent correspondence to the parties noting that it appeared that the parties had agreed to defer this Application pending the outcome of the civil proceeding. The parties were advised that if either party wished to bring the matter back on after completion of the civil proceeding, they were required to contact the Tribunal within 60 days of completion of the civil proceeding.

5Having not heard further from the parties, the Tribunal wrote to the parties again on November 29, 2010 requesting information as to the status of the civil proceeding. By letter dated February 14, 2011, applicant’s counsel replied that the civil action was still proceeding.

6On June 10, 2011, the Tribunal wrote again to the parties to inquire as to the status of the civil proceeding. The parties were directed to respond within 30 days. No response was received from the applicant or his counsel.

7The respondents’ counsel replied by letter dated June 29, 2011. In this letter, the respondents stated their position that the civil action was not in fact proceeding. It was noted that the applicant had taken no active steps with respect to the civil action in four years. It was stated that the applicant had agreed to amend his Statement of Claim in 2007, but despite several promises to provide this document, the respondents had yet to receive this Amended Claim. Respondents’ counsel stated that he had written to applicant’s counsel regarding this issue on numerous occasions, without substantive response. The respondent company asserted that this long and unexplained delay had caused it prejudice, most significantly the loss of employees who were the adverse parties to this dispute. The respondents expressed their position that this Application should be dismissed for excessive delay, and indicated that they were in the process of preparing a Request for Order to dismiss to be filed with the Tribunal shortly. Such Request was in fact filed by the respondents with the Tribunal on August 23, 2011.

8On August 23, 2011, the Tribunal sent further correspondence to the parties, noting that it had not received any response from the applicant to its earlier correspondence dated June 10, 2011. It was stated in this letter that failure to respond to the Tribunal could result in the dismissal of this matter as abandoned. Applicant’s counsel was directed to respond to the Tribunal’s June 10, 2011 letter by no later than September 2, 2011.

9It is now September 9, 2011, one week after the deadline set out in the Tribunal’s August 23, 2011 letter and no response has been received from the applicant. In addition, pursuant to this Tribunal’s Rules, the applicant’s response to the respondents’ Request for Order to dismiss the Application was required to be filed within 14 days of the date of service. As this Request was served on applicant’s counsel on August 22, 2011, the applicant’s response was due by September 5, 2011. No such response has been filed with this Tribunal. Nor has the applicant or his counsel provided any response to the correspondence dated June 29, 2011 filed by respondent counsel.

10These circumstances, in my view, warrant the dismissal of this Application as abandoned and the Application is hereby dismissed on that basis.