HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
J. D.
Applicant
-and-
The Grand Erie District School Board and Sandra Magnani
Respondents
DECISION
Adjudicator: Kathleen Martin
Indexed as: J.D. v. The Grand Erie District School Board
WRITTEN SUBMISSIONS
J.D., Applicant
None
The Grand Erie District School Board and Sandra Magnani, Respondents
Richelle M. Pollard, Counsel
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 with respect to services on the basis of disability. This decision addresses whether the Application should be dismissed as abandoned or as an abuse of process.
2The Application was filed on December 18, 2010 by the applicant directly. On December 27, 2010, the Tribunal received an email from the applicant indicating that his close friend would be acting as his agent, whom he identified, and provided contact information. Since that time, the Tribunal has communicated with the applicant through his agent.
3The Application was originally scheduled for hearing on January 17, 2012. The applicant did not comply with the original disclosure deadlines required by the Tribunal’s Rules of Procedure in advance of the hearing date and sought an extension for filing after the deadline. The respondent did not object to the extension request but sought an adjournment of the hearing date. In a Case Assessment Direction dated January 5, 2012, I granted the extension but found that the request for an adjournment was premature.
4Eleven days before the hearing date, on January 6, 2012, the applicant filed an extensive request for production of documents and identified nine witnesses that he wished to call. The respondent renewed their request for an adjournment based on, among other things, late disclosure of required documents and the quality of the nine witness statements (which for the most part consisted of single sentence summaries).
5In an Interim Decision dated January 13, 2012, I adjourned the hearing. I found it fair, just and expeditious to cancel the hearing date for the purpose of issuing directions to the parties regarding the outstanding production request and the form of the witness statements and issued directions in that regard (2012 HRTO 83). Among other things, the Interim Decision ordered that the applicant provide amended witness statements by January 23, 2012, including a detailed statement of the particular evidence to be given by each proposed witness.
6The applicant did not file amended witness statements until January 29, 2012. On February 1, 2012, the respondent filed submissions objecting to eight of the proposed witnesses on the basis of relevancy and raising concerns as to the accuracy of the statements given that they stated that the applicant had not consulted with many of the witnesses identified.
7On March 27, 2012, the hearing was rescheduled for September 18, 2012.
8On May 16, 2012, the Tribunal notified the parties that it wished to schedule a conference call to deal with outstanding preliminary issues. The parties were consulted on dates and a date available to both parties was scheduled. A copy of the Notice of Conference Call dated May 17, 2012 was sent to the parties by regular mail and was not returned.
9On June 21, 2012, the conference call proceeded. The applicant did not attend. At that time, the respondents made submissions that the Application should be dismissed as abandoned. I did not dismiss the Application and proceeded to hear submissions from the respondents on the preliminary issues. I addressed these issues in the applicant’s absence as I was satisfied that notice of the conference call had been given to the applicant.
10In an Interim Decision dated June 22, 2012, I confirmed the rulings I had made at the conference call and I issued a number of directions to the parties (2012 HRTO 1235). Among other things, I specifically directed the applicant to provide a written explanation as to why he failed to attend the conference call; to confirm in writing his contact information and that he intends to attend the hearing on September 18, 2012; and to provide amended witness statements for each witness, along with a signed and dated statement from each witness and if he is unable to do so written submissions detailing his reasons. The latter direction was made at the respondent’s request to address their concern about the accuracy of the witness statements. I directed the applicant to comply with these directions by July 7, 2012. The Interim Decision was sent by regular mail and email to the applicant.
11Since the June 22, 2012 Interim Decision, the Tribunal received communication from the applicant on two occasions, June 22, 2012 and June 28, 2012. On the former date the Tribunal received an email from the applicant’s agent providing submissions on some of the issues the applicant was directed to address. Among other things, the applicant stated that he would attend the hearing on September 18, 2012; that he had not received notice of the time and date of the conference call; that he would be relying on an affidavit of a CAS worker (identifying the affiant); and would be calling three witnesses (also identified) for which signed witness statements would be provided in the “near future” although the applicant stated he could not guarantee doing so for one witness as he was an employee of the respondent. In the email on June 28, 2012, the applicant’s agent provided an updated mailing address.
12The applicant did not comply with the requirement to file signed witness statements by July 7, 2012 nor did he provide reasons for his inability to do so.
13On July 19, 2012, the respondents filed a Request for Order During Proceeding seeking dismissal of the Application as an abuse of process on the basis that the applicant had failed to provide the amended witness statements in accordance with the Tribunal’s order and failed to provide a reason for doing so (the “Request”). The respondents state this conduct in failing to comply with the Tribunal’s directions abuses the Tribunal’s process and prejudices the respondents in preparing for their case for reasons outlined. The respondents filed a Statement of Delivery (Form 23) indicating that the Request was sent to the applicant care of his agent at the updated address provided.
14On July 30, 2012, I issued a Case Assessment Direction regarding the issue of the affiant’s potential evidence. I specifically directed the applicant to provide a copy of the CAD to the Children’s Aid Society of Haldimand & Norfolk and file a Form 23 Statement of Delivery confirming that he had done so with a copy to the respondents by August 13, 2012. A copy of this CAD was sent to the applicant at the email address on file for his agent and which his agent had been using in communicating with the Tribunal.
15The applicant did not file a Response to the respondents’ Request that the Application be dismissed as an abuse of process within the time frame stipulated in the Tribunal’s Rules nor did the applicant comply with the requirement in the July 30, 2012 CAD to file the Form 23 Statement of Delivery by August 13, 2012.
16On August 16, 2012, the respondents wrote to the Tribunal indicating that they also rely on the applicant’s failure to comply with the Tribunal’s direction of July 30, 2012 to file a copy of the Form 23 in support of its Request. The letter indicates that it was sent to the applicant care of his agent at the agent’s email address.
17On August 15, 2012, I issued a further Case Assessment Direction to the parties. I noted that the applicant had failed to file a response to the Request and the time for responding had elapsed. I specifically directed the applicant to file a response by August 21, 2012 and include in his response, complete submissions addressing why this Application should not be dismissed as an abuse of process. In addition, I stated that should the applicant fail to comply with the above direction, the Application may be dismissed as abandoned. The CAD was sent by email and mail to the applicant care of his agent.
18Notwithstanding the direction, the applicant has not filed any response nor has the Tribunal received any other communication from the applicant since June 28, 2012.
19On August 22, 2012, the respondents sent a letter to the Tribunal relying on the applicant’s failure to adhere to the recent direction in further support of their position that the Application be dismissed as an abuse of process or otherwise dismissed as abandoned. In support of their position regarding the Application being abandoned, the respondents attach and rely on a number of cases of the Tribunal (see, for example, Singh v. Planet Energy Corporation, 2012 HRTO 228). The respondents’ letter reflects that a copy has been sent by email to the applicant care of his agent.
20In the circumstances, I find that the applicant has abandoned the Application. The Application is dismissed and the hearing date of September 18, 2012 is cancelled.
21Based on this conclusion, I do not find it necessary to consider the Request to Dismiss for an abuse of process.
Dated at Toronto, this 24th day of August, 2012.
Signed by
Kathleen Martin
Vice-chair