Arthur Andersen v. Wheel Chair Accessible Transit Inc., 2011 HRTO 649

Human Rights Tribunal of Ontario

Between:

Arthur Andersen Applicant

-and-

Wheel Chair Accessible Transit Inc. Respondent

Decision

Adjudicator: Alison Renton Date: April 5, 2011 Citation: 2011 HRTO 649 Indexed as: Andersen v. Wheel Chair Accessible Transit

Appearances

Arthur Brown Andersen, Applicant: No one appearing Wheel Chair Accessible Transit Inc., Respondent: Samil Chagpar, Counsel

Reasons for Decision

1The applicant filed an Application with the Tribunal under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on January 6, 2010 alleging discrimination in employment on the basis of age when his employment was terminated in February 2009.

2The respondent filed a Response on March 25, 2010 asking for an early dismissal of the Application on the basis that the applicant has signed a full and final release in respect of the subject-matter of the Application. The respondent submitted that the applicant had commenced a small claims court action against it pertaining to his dismissal, which resulted in minutes of settlement being entered into between the parties dated October 7, 2009 ("the minutes"). The respondent provided the Tribunal with a copy of the minutes that appear on a Superior Court of Justice, Toronto Small Claims Court form.

3Subsequent to the minutes, in March 2010, the applicant commenced another civil action against the respondent in small claims court for allegedly falsely accusing the applicant of being in an accident. The respondent submits that the second civil action as well as the Application is barred by the minutes and that the applicant is a vexatious litigant.

4The applicant filed a Response to a Request for Order During Proceedings ("RFOP"), which appears to have been filed as a Reply since the respondent had not filed an RFOP. In it, the applicant denies that he is a vexatious litigant and provides justification for the legal proceedings he has commenced against the respondent. He opposes the respondent's request to dismiss because, he asserts, the respondent is misleading the Tribunal with wrong information.

5The Application was scheduled for hearing on December 6, 2010 pursuant to a Confirmation of Hearing Notice dated October 27, 2010 issued by the Tribunal. On Sunday, December 5, 2010, the applicant wrote to the Tribunal seeking an adjournment of the hearing for medical reasons and provided a copy of a prescription from a doctor at Humber River Regional Hospital issued that day. The respondent did not oppose the request for adjournment. The Tribunal granted the adjournment request and advised that the hearing would be rescheduled as a conference call hearing.

6On January 24, 2011, the Tribunal issued a Confirmation of Rescheduled Hearing Notice scheduling the conference call hearing for March 28, 2011. In the afternoon of Friday, March 25, 2011, the Tribunal received a letter from the applicant, dated March 24, 2011, requesting an adjournment due to his health and provided a letter from Dr. Lavan Chandran, dated February 14, 2011. It did not appear that the applicant sent a copy of this adjournment request to the respondent's counsel.

7The applicant's letter is brief and states:

Due to the present condition of my health, both physical and emotional, I wish to request a postponement of my telephone hearing scheduled for March 28 2011. Please find attached letter from my family MD. Thanks you so much for your help in this matter.

8Dr. Lavan Chandran's letter is dated February 14, 2011 and states:

To Whom It May Concern:

Arthur Brown Andersen has been a regular patient of this clinic since 2004 and has been seen by myself as his family doctor for more than one year.

He was most recently seen and assessed on January 27th, 2011 when he presented with symptoms of anxiety and depression as a result of recent accusations that he was somehow implicit in the unfortunate death of a passenger on a van he was driving. The psychological fall-out of the aforementioned allegations have had a profound effort upon his well being.

Subjectively, he reports being unable to sleep, having poor energy, being tearful frequently, and experiencing notable adhedonia. Objectively, he has lost weight from his subjective symptomatology. He is seeing me regularly for counseling [sic] to deal with his depressive symptoms.

Furthermore, due to his decreased energy he has been unable to perform his home physiotherapy exercises and as such his musculoskeletal pain (from an unrelated injury) has become worse.

I have little doubt that Mr. Andersen's psychological symptoms have been precipitated by the previously mentioned allegations.

9At 5:10 pm on March 25, 2011, the Tribunal sent an email to the parties advising:

Further to the applicant's request for an adjournment of the conference call hearing scheduled on Monday, March 28, 2011 at 9:30 am, the request has been denied.

The Vice[-c]hair has advised that all parties are expected to participate on the call and the issue about the adjournment request can be addressed at that time.

10On March 28, 2011, the conference call hearing commenced at 9:30 a.m. As the applicant had not called in for the hearing at 9:30 a.m., in accordance with its normal practice, the Tribunal held down the start of the hearing until 10:00 a.m. At 10:00 a.m., the applicant still had not called into the hearing or otherwise communicated with the Tribunal.

11The respondent stated that it had not received a copy of the applicant's adjournment request, but had received the Tribunal's March 25, 2011 email. The Tribunal read the applicant's adjournment request and February 14, 2011 letter to the respondent. The respondent indicated that it opposed the adjournment request.

12During the conference call hearing, the Tribunal dismissed the Application for the applicant's failure to participate in the hearing and stated that it would provide written reasons for the dismissal. These are those reasons.

13Dr. Chandran's February 14, 2011 letter, written more than a month before the conference call hearing, states that the applicant was last seen on January 27, 2011, more than two months before the conference call hearing. There is no explanation as to why the applicant waited until the afternoon of the business day before the hearing date to provide this documentation to the Tribunal. Further, Dr. Chandran's letter does not indicate that the applicant is unable to participate in the Tribunal's proceedings or in a conference call hearing.

14The parties were sent an email on March 25, 2011 advising them that the applicant's adjournment request was denied, but that the issue of the adjournment could be addressed during the March 28, 2011 conference call hearing. Therefore, if the applicant wished to make further submissions about his adjournment request, he had the opportunity to do so. However, it appears that the applicant chose not to participate in the conference call hearing without any further notice to the Tribunal or the respondent.

15When the applicant failed to participate in the conference call hearing, despite being directed by the Tribunal to participate, he did so at his own peril. His failure to participate, in these circumstances, has resulted in his Application being dismissed.