Holly Banda v. Alanna Miller, Corrine Long and Frank Smith, 2011 HRTO 194

Human Rights Tribunal of Ontario

B E T W E E N:

Holly Banda Applicant

-and-

Alanna Miller, Corrine Long and Frank Smith Respondent

DECISION

Adjudicator: Brian Cook Date: January 27, 2011 Citation: 2011 HRTO 194 Indexed as: Banda v. Miller

APPEARANCES BY

Holly Banda, Applicant ) Did not appear Alana Miller, Respondent ) Mark Ellis, Counsel Corrine Long, Respondent ) Raj Anand, Counsel Frank Smith, Respondent ) Anna Matas, Counsel

1This is an Application filed under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application was filed on November 12, 2009 and alleged discrimination on the grounds of race, ancestry, citizenship, ethic origin, creed, family status and marital status in goods, services or facilities contrary to s. 1 of the Code.

2The Application was delivered to the respondents, who all filed a full Response. The Responses were sent to the applicant. The applicant did not file a Reply.

3In a Case Assessment Direction dated September 16, 2010, the Tribunal directed that a summary hearing be scheduled, pursuant to Rule 19A of the Tribunal’s Rules of Procedure, which provides in part:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

4As directed in the Case Assessment Direction, the summary hearing was held by telephone conference call. The respondents participated but the applicant did not call into the conference call.

5After waiting for fifteen minutes to allow the applicant time to call into the conference call, I invited submissions from the respondents about how the Application should be dealt with. The respondents jointly submitted that the Application should be dismissed by the Tribunal, first on the grounds that the materials filed by the applicant fail to provide any factual basis for the allegations and secondly because the applicant failed to participate in the conference call.

6Rule 13.3 of the Tribunal’s Rules of Procedure provides as follows:

3.13 Where a party has been notified of a hearing and fails to attend, the Tribunal may:

a) proceed in the party’s absence;

b) determine that the party is not entitled to further notice of the proceedings;

c) determine that the party is not entitled to present evidence or make submissions to the Tribunal;

d) decide the Application based solely on the materials before it;

e) take any other action it considers appropriate.

7The Notice of Summary Hearing, dated December 8, 2010 that was sent to the parties reminded the parties of the consequences of failing to appear.

8After the Application was first received, correspondence to the applicant was returned as not deliverable. The applicant subsequently provided a new address and correspondence sent to that address has not been returned. The Notice of Summary Hearing was sent to the new address and was also sent using two different email addresses provided by the applicant. An email sent to the first address provided by the applicant was returned but the email sent to the second address was not returned. The applicant has not communicated with the Tribunal or the respondents since November 2009, when she advised of the change of address.

9In these circumstances, I am satisfied that reasonable efforts were made to notify the applicant of the summary hearing. I conclude that the Application should be dismissed as abandoned. I note that this is consistent with the Tribunal’s standard practice when an applicant fails to appear at a scheduled hearing: Obanda v. Ontario (Health and Long-Term Care) 2010 HRTO 2175.

10The Application is accordingly dismissed.