HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Graham

Applicant

-and-

City of Hamilton

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: October 18, 2011

Citation: 2011 HRTO 1874

Indexed as: Graham v. Hamilton (City)

appearances BY

Daniel Graham, Applicant ) No one appearing

City of Hamilton, Respondent ) J. Paul R. Howard, Counsel )

[1] On April 29, 2010, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, and on July 21, 2010, the respondent filed a Response.

[2] On February 11, 2011, the Tribunal issued a Notice of Rescheduled Mediation to the parties. The Notice was sent to the mailing address that the applicant provided to the Tribunal. On March 8, 2011, the Notice was returned to the Tribunal with a notation that the applicant’s post office box was closed. The Tribunal was unable to contact the applicant and adjourned the mediation shortly before the scheduled date.

[3] On March 29, 2011, the applicant filed a letter with the Tribunal which stated that he was incarcerated at a correctional centre.

[4] On May 16, 2011 the Tribunal issued a Case Assessment Direction (“CAD”) which informed the parties that the Tribunal would be scheduling a half-day summary hearing by conference call. The CAD directed the applicant to proceed first during the summary hearing, and to make his arguments about why the Application should not be dismissed as having no reasonable prospect of success.

[5] On June 2, 2011, the applicant sent the Tribunal an email which stated that he had a new address in the community.

[6] On August 31, 2011, the Tribunal issued a Notice of Summary Hearing to the parties, which informed them that the hearing was scheduled for October 12, 2011 from 9:30 AM to 12:30 PM. The Notice directed the parties to call a phone number and enter a conference identification number, both of which were provided in the Notice. The Notice also warned the parties that if they failed to attend the hearing, the Tribunal may take a number of steps, including dismissing the Application as abandoned if the applicant failed to attend, or take any other action that the Tribunal considered appropriate.

[7] The respondent called into the conference call on the date and time that was set out in the Notice, but the applicant did not. The Tribunal’s standard practice where a party does not attend is to confirm in the Tribunal’s file that the Hearing Notice was sent to the missing party at the address provided, and wait half an hour. If the party is still not present, the Tribunal proceeds in the party’s absence without further notice to that party. Where the applicant is not present, this will generally lead to the dismissal of the Application. See Edward v. Moda at Home, [2009 HRTO 568](https://www.minicounsel.ca/hrto/2009/568) at para. [2](https://www.minicounsel.ca/hrto/2009/568).

[8] I confirmed in the Tribunal’s file that the Notice of Summary Hearing was sent to the applicant at the address that he provided to the Tribunal, and when he had not called in by 10:00 AM, I dismissed the Application. The applicant commenced a legal proceeding when he filed his Application with the Tribunal, and it is his responsibility to attend the summary hearing and provide submissions. In the absence of such submissions, the Tribunal is unable to proceed with the Application and there is no onus or responsibility on the respondent to provide submissions in response.

[9] Later in the morning, the applicant called the Tribunal and stated that he tried to call into the conference call at 10:30 AM, but no one was there. He stated that he called in at 10:30 AM because his understanding of the Notice was that the hearing would start between 9:30 AM and 12:30 PM.

[10] I would have considered reversing my decision dismissing the Application if the applicant had provided an extraordinary reason, such as an illness, an accident or a family emergency, which was credible, for not attending the hearing on time. Instead, he provided a nonsensical explanation. In these circumstances, it would not be fair, just and expeditious to reschedule the summary hearing.

[11] The Tribunal has a duty to dispose of applications fairly, justly and expeditiously: see section 40 of the Code and Rule 1.1 of the Tribunal’s Rules of Procedure. This duty is not only in relation to applicants, but also in relation to respondents, who may expend significant resources responding to human rights Applications, and the public, whose tax dollars fund the Tribunal. In Ouwroulis v. New Locomotion, [2009 HRTO 335](https://www.minicounsel.ca/hrto/2009/335), the Tribunal stated at paras. 4-7:

Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.

[12] Furthermore, the respondent is unable to recover any costs resulting from this process, including the applicant’s non-attendance at the summary hearing, because this Tribunal has no jurisdiction to award costs. See Dunn v. United Transportation Union, Local 104, [2008 HRTO 405](https://www.minicounsel.ca/hrto/2008/405).

[13] The Application is dismissed.

Dated at Toronto, this 18^th^ day of October, 2011.

“Signed by”

Ken Bhattacharjee

Vice-chair