C.B. v. Simcoe County District School Board, 2012 HRTO 1411

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.B. and T.B. by their next friend J.M.

Applicants

-and-

Simcoe County District School Board

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner Date: July 18, 2012 Citation: 2012 HRTO 1411 Indexed as: C.B. v. Simcoe County District School Board

APPEARANCES

C.B. and T.B. by their next friend J.M., Applicants No one appearing

Simcoe County District School Board, Respondent Nadya Tymochenko, Counsel

1These two consolidated Applications were filed by minor brothers through their mother, their next friend, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of race, colour, ancestry, place of origin, ethnic origin and disability.

2A hearing was scheduled to begin on June 18, 2012. On May 14, 2012, the respondent filed a Request for Summary Hearing. On May 16, 2012, the applicants’ mother e-mailed the Tribunal, copying the respondent, to ask that the hearing be rescheduled because of family crisis, and to advise that she needed time to find a lawyer.

3On June 1, 2012, the Tribunal issued a Case Assessment Direction (“CAD”) which cancelled the hearing scheduled to commence on June 18, 2012, and which directed the parties to attend a case management conference call at 9:30 a.m. on July 18, 2012.

4On June 4, 2012, the applicants’ mother responded to the Tribunal’s e-mail which attached the June 1, 2012 CAD. She provided her new address in her e-mail, and stated that she had read the respondent’s Request for Summary Hearing, did not understand it, and needed more time to obtain legal representation. The respondent’s counsel replied by e-mail on June 4, 2012, to the applicants’ mother’s e-mail stating that she trusts that the applicant would be able to obtain legal assistance by the July 18, 2012 conference call. The applicant did not respond.

5On June 4, 2012, a Notice of Confirmation of Hearing was sent to the parties by mail, advising of the conference call scheduled for July 18, 2012, and providing information on how to connect to the conference call. Unfortunately, the Notice was sent to the applicant’s old address, not the new one she provided by e-mail the same day as the Notice was sent to her.

6On June 7, 2012, the Tribunal issued a second CAD directing the parties, including the applicants’ mother, to appear on the conference call with or without legal representation, reminding the parties that it was scheduled for July 18, 2012. The second CAD stated that if the applicants’ mother did not have a legal representative, then she would have the opportunity to explain what she had done to find one and why she was unsuccessful. This second CAD was sent to the applicants’ mother by mail to her new address and by e-mail.

7On July 18, 2012, at 9:30 a.m., the respondent telephoned into the Summary Hearing. The applicants’ mother failed to appear by 10:00 a.m. The respondents made submissions to me, asking that the Application be dismissed as abandoned on the basis that the applicant had failed to appear. I reserved my decision, explaining to the respondent that I would confirm with staff at the Tribunal as to whether they had received any communications by the applicant. The call was ended at approximately 10:10 a.m.

8On July 18, 2012, at 1:38 p.m., the Tribunal received an e-mail from the applicants’ mother. It advised, “I sat by the phone awaiting a phone call to commence the conference call. I did not receive a call, and I am not exactly sure what is going on. Please contact me at your earliest convienence [sic].” It did not indicate that the applicants or their mother had obtained legal representation.

9Given that the Notice of the July 18, 2012 conference call, which had instructions on how to connect to the conference call, was mailed to the applicants’ mother’s old address, and given the contents of the applicants’ mother’s e-mail sent to the Tribunal the day of the conference call, I am not satisfied that she received the Notice. At the same time, I am satisfied that the applicants’ mother received both CADs and was aware that she was to participate in a conference call hearing at 9:30 a.m. on July 18, 2012, with or without legal representation. It is therefore surprising that she waited until well after 9:30 a.m. to contact the Tribunal and ask about “what is going on”.

10In the circumstances, I am not prepared to dismiss the Applications as abandoned, but the applicants, through their mother or legal representative, must confirm within 14 days of this Interim Decision that they wish to proceed with their Applications. If no confirmation is received, then the Tribunal may dismiss the Applications as abandoned. If confirmation is received, then the Tribunal may issue further directions or simply schedule further hearing dates, particularly to deal with the respondent’s Request for Summary Hearing.