Stickle v. Grafton Fraser Inc., 2011 HRTO 493

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ford Stickle

Applicant

-and-

Grafton Fraser Inc., Sandy Zuzan, and Tony Santantonio

Respondents

DECISION

Adjudicator: David A. Wright

Date: March 10, 2011

Citation: 2011 HRTO 493

Indexed as: Stickle v. Grafton Fraser

APPEARANCES

Ford Stickle, Applicant ) No one appearing

Grafton Fraser Inc., Sandy Zuzan ) Alix P. Herber and and Tony Santantonio, Respondents ) Hadiya J. Roderique, Counsel

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19., as amended. The applicant alleges that the respondents discriminated against him with respect to employment on the basis of race, colour, and age.

2By Case Assessment Direction (“CAD”) dated November 19, 2010, the Tribunal directed that a one-day in-person summary hearing would be held to determine whether the Application should be dismissed as having no reasonable prospect of success. Among other things, the CAD required the applicant to identify the evidence he would use to prove that the treatment he alleged was linked to the grounds cited, and to file signed witness statements from any witnesses other than himself whose testimony he intended to use to draw a link between the treatment he experienced and the grounds cited. These statements, together with any other documents, were required to be delivered to the respondent and filed with the Tribunal no later than 14 days prior to the summary hearing.

3A Notice scheduling the hearing for March 8, 2011 was sent to the parties on January 4, 2011, and a subsequent correcting notice sent on January 6, 2011. These notices were sent to the address then on file for the applicant.

4The applicant did not file any materials by the deadline. At 5:09 PM on March 7, 2011, the evening before the hearing, the applicant sent the Registrar the following email, which was not copied to counsel for the respondents as required by the Tribunal Rules:

To whom it may concern:

At the current time due to my mailing address issues I did not receive the notice in time to submit the requested statements for the hearing on March 8th, 2011. As I do not have legal services I am unaware of steps that that I must take to have an extension or if my only option now would be to withdrawal my claim. If there are no options to be had then let this email be my formal withdrawal from my claim.

Thank you

Ford Stickle

The email concluded with a new mailing address for the applicant.

5The applicant did not attend the hearing on March 8, 2011. Since the applicant’s email was received after business hours on the day before the hearing, the Tribunal was unaware, and was unable to provide notice to the respondents of the applicant’s position. The respondents attended at the hearing prepared to proceed.

6I sought the respondents’ position on the applicant’s Requests. They took the position that the applicant’s requests to extend time or to withdraw the Application should not be granted, and that the Application should be dismissed. I ruled that the Application was dismissed, with reasons to follow. These are those reasons.

7The Tribunal’s Rules require that a party keep the Tribunal informed of a current address (Rule 1.13). They also require that a party treat the Tribunal and the other parties with courtesy and respect (Rule 1.7 (v.1)).

8The Tribunal’s practice is that an applicant who fails to attend a hearing without valid excuse will have his or her Application dismissed: see Edward v. Moda at Home, 2009 HRTO 568. In these circumstances, I find that this should be the result despite the applicant’s email of March 7 that requests an adjournment or a withdrawal.

9Had the applicant made his adjournment request shortly before the hearing, it would likely have been denied. Following an initial period during which either party may request that the hearing be rescheduled if they are unavailable, the Tribunal does not grant adjournments absent exceptional circumstances (Vallentyne v. Royal Canadian Legion, 2009 HRTO 660), and unspecified “address problems” do not in my view meet that definition.

10The applicant made his request after business hours when the Tribunal could not rule on it, and then chose not to attend the hearing. I am sensitive to and take into account the fact that the applicant is self-represented, appears to be unfamiliar with the legal system, and may have been unfamiliar with the Tribunal’s Rules. I have considered that he may have been unaware of the need to either provide advance notice of a request for adjournment or withdrawal or attend the hearing to make such a request. However, this is not the only consideration. It must be balanced against other relevant factors, including prejudice to other parties and to the process: Audmax Inc. v. Ontario Human Rights Tribunal, 2011 ONSC 315 at paras. 38-42.

11First, while he is self-represented, there were mechanisms for the applicant to obtain information about the steps he could take. The Tribunal’s standard Notice of Hearing states how an adjournment may be requested. The Tribunal has multiple guides which are available electronically and in person. Tribunal staff are available to answer questions about proper procedure. The availability of these resources is set out in the Notice of Application that each party receives when the Application is accepted.

12Second, the applicant’s actions showed disrespect for the Tribunal, the respondents, and the process in which he was engaged, despite the fact that he was not represented by counsel. Assuming that the applicant had moved, he did not provide the Tribunal with current contact information despite the fact that the Tribunal’s Notice of Application specifically alerted the parties that they must advise the Tribunal of changes to their contact information. He had advised the Tribunal of a previous move.

13More important, it is clear that at some point before 5:09 PM on March 7, the applicant was aware that a hearing was scheduled for March 8, 2011. Yet knowing that a hearing was scheduled for the next day, at which the respondents and their counsel were required to attend, he wrote the Tribunal immediately following the close of business to request an extension or withdrawal and then did not attend the hearing. He must have known that this course of action would greatly inconvenience and cause costs for the respondents.

14Third, the prejudice to the respondents is significant. The Tribunal does not have the power under its current rules to order costs for wasted time and legal fees in circumstances like this. The continuing costs, stress and inconvenience for individuals and organizations involved in legal proceedings, particularly ones such as this where there may well be no reasonable prospect of success, must be taken into account.

15Fourth, the Tribunal must take into account the prejudice to the process. The HRTO has a large number of cases, the majority of which have at least one self-represented litigant, and constraints on its resources. As noted in Vallentyne, supra, when a matter must be rescheduled and nothing else can be put in its place, it causes delays for the many other applicants and respondents waiting to have their disputes mediated and adjudicated.

16For all these reasons, the matter should not be adjourned. Having failed to attend the scheduled hearing to provide evidence that shows how his allegations have a reasonable prospect of success, the Application is dismissed.