HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ishaac Filali
Applicant
-and-
WoodGreen Community Services
Respondent
DECISION
Adjudicator: Mark Hart
Decision Date: June 13, 2012
Indexed as: Filali v. WoodGreen Community Services
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability, colour and age.
2This matter was scheduled to proceed to hearing on June 13 and 14, 2012. The Confirmation of Hearing on these dates was sent to the parties on December 20, 2011. This notice was sent to the applicant by e-mail to the e-mail address that he provided on his Application form as well as to two additional e-mail addresses that the applicant had used previously to correspond with the Tribunal. Unfortunately, due to a typographical error, one of the e-mail addresses to which the notice was sent was mis-spelled. However, the third e-mail address to which the notice was sent had been used by the applicant to correspond with the Tribunal as recently as November 23, 2011. Despite the typographical error in one of the e-mail addresses to which the notice was sent, I am satisfied that the applicant did receive proper notice of the hearing in this matter.
3Rule 16.1 of the Tribunal’s Rules requires each party to deliver to every other party a list of all arguably relevant documents in their possession and a copy of each document contained on the list (except where privilege is claimed). This disclosure is to be made within 21 days after the Tribunal sends the Confirmation of Hearing.
4The Confirmation of Hearing sent to the parties on December 20, 2011 included confirmation that the parties were to make the disclosure required by Rule 16.1 by January 10, 2012. No disclosure was made by the applicant by this date or in the ensuing months.
5On May 7, 2012, the respondent filed a Request for Order during Proceedings seeking compliance by the applicant with his disclosure obligation under Rule 16.1 of the Tribunal’s Rules of Procedure. This Request for Order was served on the applicant by e-mail. The applicant did not respond to this Request.
6On May 24, 2012, I issued an Interim Decision (2012 HRTO 1035) directing the applicant to comply with his obligations under the Rules by June 4, 2012, by disclosing all arguably relevant documents in his possession and by providing a list of witnesses he intended to call at the hearing and a summary of their evidence. This Interim Decision expressly referenced that the hearing would proceed on June 13 and 14, 2012. This Interim Decision was sent to the applicant by mail at the address provided on his Application and by e-mail to the applicant’s correct e-mail address (ifilali@me.com). I have little doubt that the applicant received this Interim Decision, as on May 24, 2012, he replied to the Tribunal staff member who had sent him the decision to provide some information about the witnesses he intended to call and referenced some documents upon which he intended to rely at the hearing, although the documents themselves were not provided.
7On June 5, 2012, the respondent filed a further Request for Order seeking dismissal of the Application on the basis of the applicant’s failure to comply with his disclosure obligations under Rule 16.1 and with my Interim Decision dated May 24, 2012, or in the alternative seeking an adjournment of the hearing until the applicant had fully complied. The respondent’s Request noted that the applicant still had not complied with his obligation to disclose all arguably relevant documents nor had he provided a confirmed witness list or summary of witness evidence.
8The respondent also raised an issue regarding a file relating to the applicant in the possession of ACCLAIM, the respondent’s disability management provider. There is little doubt as to the relevance of the documents in this file to the matters at issue in this proceeding, as the applicant was providing medical documentation directly to ACCLAIM regarding his medical restrictions and ability to return to work, which are central issues in this proceeding. The respondent advised the Tribunal that ACCLAIM would not disclose this file without the applicant’s consent. Accordingly, on May 31, 2012, the respondent provided the applicant with a consent form for the release of these documents, however the applicant failed to sign and return this form to the respondent.
9On June 7, 2012, I issued a Case Assessment Direction (“CAD”) to address the outstanding issues regarding production of documents by the applicant and his failure to fully comply with his pre-hearing obligations. In this CAD, I directed and urged the applicant to immediately disclose to the respondent and file with the Tribunal the arguably relevant documents in this possession, and specified the kinds of documents that he needed to disclose. In any event, I directed the applicant to bring these documents with him to the hearing on June 13, 2012. I also indicated that I would address the issue of the file in the possession of ACCLAIM at the hearing on June 13, 2012.
10No documents were disclosed to the respondent or filed with the Tribunal prior to June 13, 2012.
11The hearing on June 13, 2012 was scheduled to commence at 9:30 a.m. The respondent was in attendance at the hearing with counsel, its representatives and its witnesses. When the applicant failed to appear by 9:30 a.m., I stood the matter down for half an hour to provide an opportunity for the applicant to appear. I also checked with Tribunal staff to find out whether the Tribunal had received any communication from the applicant to explain his failure to appear. As of 10:10 a.m., I confirmed that the Tribunal had received no such communication from the applicant, and the applicant had still not appeared for the hearing. As a result, I released the respondent from further attendance at the hearing.
12A Tribunal application is a legal proceeding commenced by the applicant. It is the applicant’s responsibility to attend the hearing and provide evidence in support of the allegations raised in the Application. In the absence of such evidence, the Tribunal is unable to proceed with the Application and there is no onus or responsibility on the respondent to provide evidence in response to allegations where the applicant has failed to appear at the hearing and no evidence has been provided by the applicant in support of his allegations.
13It is also the applicant’s responsibility to comply with his disclosure and pre-hearing obligations under the Tribunal’s Rules. Despite having repeatedly advised the applicant of his obligations and despite having given the applicant repeated opportunities to comply, the applicant has failed to do so.
14In the absence of any correspondence or communication from the applicant to explain his failure to appear at the hearing and as a result of his failure to appear and provide any evidence in support of his allegations and his repeated failure to comply with his disclosure obligations under the Rules and with the directions provided in my Interim Decision and CAD, the Application is dismissed as abandoned.
Dated at Toronto, this 13th day of June, 2012.
Signed by
Mark Hart
Vice-chair