Human Rights Tribunal of Ontario
BETWEEN:
Joshua Hatton Applicant
-and-
Her Majesty the Queen in right of Ontario as represented by the Minister of Community Safety and Correctional Services Respondent
DECISION
Adjudicator: Sheri D. Price Date: July 17, 2012 Citation: 2012 HRTO 1401 Indexed as: Hatton v. Ontario (Community Safety and Correctional Services)
BACKGROUND
1On January 3, 2012, the applicant filed an Application under s.34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), alleging that the respondent, his former employer, discriminated against him with respect to employment and contracts on the basis of disability.
2The respondent sought early dismissal of the Application on the basis that the applicant had signed a Full and Final Release, releasing the respondent from any and all claims under the Code.
3The applicant acknowledged that he had entered into Minutes of Settlement with the respondent, fully and finally releasing it from claims under the Code. However, he submitted that he was under duress when he entered into the Minutes of Settlement and also that he was incapable of agreeing to the settlement because of disability. In the circumstances, the applicant submitted that his Application ought to be permitted to proceed.
4The Tribunal scheduled a hearing to determine whether the Application ought to be dismissed in whole or in part on the basis that another proceeding had appropriately dealt with the substance of the Application within the meaning of s.45.1 of the Code and/or whether the Application ought to be dismissed as an abuse of process.
5The hearing was scheduled for Monday, July 16, 2012.
6The parties were advised of the time and location of the hearing in a Notice of Confirmation of Hearing dated April 13, 2012.
APPLICATION DISMISSED AS ABANDONED
7Late in the afternoon on Friday, July 13, 2012, the applicant sent an email to the Registrar of the Tribunal indicating that he thought he “might as well drop” his case against the respondent and that he would not be attending the hearing on Monday, July 16, 2012. In his email, the applicant indicated that he did not believe that he would get a fair hearing before the Tribunal and that, in any event, it was not worth it for him to bother pursuing the case, particularly since he had obtained employment with another employer. Counsel for the respondent was copied on the email.
8As the applicant’s email arrived late in the day on Friday, July 13, 2012, the Tribunal did not respond to it or take any other action in advance of the Monday hearing.
9The applicant’s email to the Registrar did not come to my attention until the morning of July 16, 2012.
10At that time, I also became aware of a July 13, 2012 email that the applicant had sent directly to a staff member of the Tribunal who does not normally receive correspondence from the parties, even though the applicant was specifically advised by such staff member that any questions or communications regarding his Application were to be directed to the Registrar. In that email, the applicant stated that he did not think it was “worth the hassle” to proceed with his case and that he was “withdrawing” his Application against the respondent. That email was not copied to the respondent as required by the Tribunal’s Rules of Procedure.
11On July 16, 2012, I convened the hearing at the time and place set for that purpose in the Notice of Confirmation of Hearing. The respondent was in attendance and represented by counsel. The applicant was not in attendance at the hearing.
12At the hearing, the respondent submitted that the Tribunal ought to dismiss the Application as opposed to treating it as having been withdrawn by the applicant. The respondent expressed concern that allowing the applicant to withdraw his Application might leave the door open for the applicant to attempt to pursue his allegations against the respondent in future. The respondent’s concern in this regard is underlined by the fact that the applicant commenced this Application a relatively short time after he fully and finally released the respondent from any and all employment-related claims under the Code.
13The Notice of Confirmation of Hearing that was sent to the parties by the Tribunal on April 13, 2012 set out the consequences of failing to attend the hearing as follows:
CONSEQUENCES OF FAILING TO ATTEND THE HEARING
If you fail to attend the hearing after receiving proper notice the HRTO may:
- proceed in your absence;
- determine you are not entitled to further notice of the proceedings;
- determine you are not entitled to present evidence or make submissions to the HRTO;
- decide the Application based solely on the materials before the HRTO;
- dismiss the Application as abandoned if the applicant fails to attend, and;
- take any other action the HRTO considers appropriate.
14In this case, the applicant appears to have sought to withdraw his Application one business day before the hearing. However, the applicant did not have the right to unilaterally withdraw his Application against the respondent at the eleventh hour. Pursuant to Rule 10.5 of the Tribunal’s Rules of Procedure, where a Response to an Application has already been filed, an Application may be withdrawn only with the permission of the Tribunal and upon such terms as the Tribunal may determine. In this case, the Tribunal did not give the applicant permission to withdraw his Application and did not cancel the July 16, 2012 hearing.
15In light of the applicant’s July 13, 2012 emails indicating his intention not to pursue his Application against the respondent and his corresponding failure to attend the July 16, 2012 hearing, I find that the applicant has abandoned his Application against the respondent. In the circumstances, and in accordance with the Notice of Confirmation of Hearing that was sent to the parties, I find it appropriate to dismiss the Application as abandoned.
ORDER
16The Application is dismissed.
Dated at Toronto, this 17th day of July, 2012.
Signed by
Sheri D. Price Vice-chair