McCann v. York University, 2012 HRTO 1493

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jack McCann

Applicant

-and-

York University

Respondent

A N D B E T W E E N:

Jack McCann

Applicant

-and-

Canadian Union of Public Employees, David Hylton, Richard Price and Calvin Traynor

Respondents

Interim decision

Adjudicator: Naomi Overend

Date: July 31, 2012

Citation: 2012 HRTO 1493

Indexed As: McCann v. York University

1On March 14, 2011, the applicant filed Application 2011-08342-I and asked that the Application be consolidated with Application 2010-07065-I, which had been filed on October 8, 2010. The two files were consolidated in an Interim Decision dated April 25, 2012 (2012 HRTO 845).

2The April 25, 2012 Interim Decision also addressed, among other issues: (1) the respondents’ request to remove the individual respondents in Application 2010-07065-I; and (2) the failure of the individual respondents to file Responses in Application 2011-08342-I. The applicant was directed to file his submissions on the request to remove the individual respondents in the one Application, and the individual respondents were directed to file their Responses in the other.

3This Interim Decision addresses the request to remove the individual respondents in Application 2010-07065-I, the failure of Richard Price to file a Response in 2011-08342-I and the failure by David Hylton to file a full Response in 2011-08342-I.

REMOVAL OF INDIVIDUAL RESPONDENTS IN 2010-07065-I

4In their Response to Application 2010-07065-I, the respondents request that the four individually-named respondents be removed as parties to the Application 2010-07065-I. The applicant was asked for submissions on this, and has since written in that he consents to their removal.

5I agree that it is appropriate to remove these individuals in light of the Tribunal’s stated concern in Persaud v. Toronto District School Board, 2008 HRTO 31, about the “unnecessary naming of personal respondents”. The respondents’ request to remove Gary Brewer, Sharon Hooper, Paul Campbell and Joanne Cary as individual respondents in Application 2010-07065-I is granted. The style of cause has been amended to reflect their removal.

NO RESPONSE BY RICHARD PRICE IN 2011-08342-I

6When it filed its Response in Application 2011-08342-I, CUPE made it clear that it was filing for itself, and not on behalf of the three named individual respondents. In an earlier Case Assessment Direction, issued on March 28, 2011, the Tribunal had specifically directed “CUPE and the individual respondents” to deliver their Responses to counsel for the applicant and counsel for the respondents in Application 2010-07065-I. Despite that, only one of the respondents, Calvin Traynor, attempted to file a Response.

7The individual respondents were once again directed to file responses in the Interim Decision dated April 25, 2012. Both Mr. Traynor and David Hylton filed Responses. Richard Price did not. The mailed copy of the Interim Decision directing him to file his Response was returned with the notation he was not at that address. A copy of the Interim Decision was also emailed to him, and there is no indication that he did not receive a copy of the Interim Decision via email.

8Although he failed to file a Response earlier, Mr. Price did participate in mediation. Earlier documents sent to him at the address on file were not returned. It would appear that the initial contact information provided by the applicant for this individual was valid. Once a party has received notice of the Tribunal’s process, it is incumbent upon that individual to ensure the Tribunal has up-to-date contact information (see Rule 1.13).

9As noted in the April 25, 2012 Interim Decision, failure to file a response or participate in a Tribunal proceeding may lead to orders against individual and corporate respondents without their participation. Rule 5.5 of the Tribunal’s Rules of Procedure reads as follows:

5.5 Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal.

10A copy of this Interim Decision will be sent by email to Richard Price. He is directed to notify the Tribunal, and all parties and their representatives, of his change in address or otherwise update his contact information. In addition, if he wishes to participate in this proceeding, he shall file his full Response within two weeks of the date of this Interim Decision, together with an explanation of why the Response was not filed in accordance with the directions of the Tribunal. If a Response is not received, the Tribunal may proceed without further notice to him and may take any or all of the steps set out in Rule 5.5.

RESPONSE BY DAVID HYLTON IN 2011-08342-I

11When David Hylton filed his Response in Application 2011-08342-I, he indicated that he was making a request for dismissal without filing a full response because the applicant had filed a civil claim in which he requested a remedy based on the alleged violation of his human rights. In response to a request from the Tribunal, Mr. Hylton provided a copy of a Statement of Claim filed by the applicant, which appears to be based on the same factual allegations as his Application.

12However, it would appear that the Statement of Claim is based on defamation, not a violation of the Human Rights Code, R.S.O. 1990, c. H.19, as amended. Accordingly, Mr. Hylton is directed to file a full Response, in which he responds to the allegations in the Application and provides any additional facts and defences upon which he intends to rely, within two weeks of the date of this Interim Decision.

ORDER

13In sum, I have made the following orders/directions:

a. The respondents’ request to remove Gary Brewer, Sharon Hooper, Paul Campbell and Joanne Cary as individual respondents in Application 2010-07065-I is granted. The style of cause has been amended to reflect their removal;

b. A copy of this Interim Decision will be sent by email to Richard Price. Within two weeks of this Interim Decision, he is directed to notify the Tribunal, and all parties and their representatives, of his change in address or otherwise update his contact information;

c. In addition, if Richard Price wishes to participate in this proceeding, he shall file his full Response within two weeks of the date of this Interim Decision, together with an explanation of why the Response was not filed in accordance with the directions of the Tribunal; and

d. David Hylton is directed to file a full Response, in which he responds to the allegations in the Application and provides any additional facts and defences upon which he intends to rely within two weeks of the date of this Interim Decision.

14I am not seized of this matter.