M.D. v. Toronto District School Board, 2012 HRTO 1649

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

M.D. by his next friend K.D.

Applicant

-and-

Toronto District School Board and Toronto Catholic District School Board

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: August 29, 2012

Citation: 2012 HRTO 1649

Indexed as: M.D. v. Toronto District School Board

1On April 19, 2010, the applicant’s next friend filed an Application on the applicant’s behalf under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and on September 21, 2010, the respondents filed Responses to the Application.

2On April 13, 2011, the applicant’s next friend and the respondent Toronto District School Board (“TDSB”) attended a mediation at the Tribunal, which did not result in a settlement of the case. The respondent Toronto Catholic District School Board (“TCDSB”) did not attend the mediation.

3On January 18, 2012, the Tribunal issued a Notice of Confirmation of Hearing to the parties, which informed them that the hearing was scheduled for July 25, 26 and 27, 2012. On May 17, 2012, the respondent TDSB sent an e-mail to the Tribunal and the parties, which requested that the hearing be rescheduled for September 2012 because most of its witnesses were not available to testify during the summer months. On the same day, the respondent TCDSB sent an e-mail to the Tribunal and the parties, which consented to rescheduling the hearing to dates in September 2012. On May 29, 2012, the applicant’s next friend sent an e-mail to Tribunal and the parties, which stated that she was available to attend the hearing in late September.

4On June 8, 2012, the Tribunal’s granted the respondent TDSB’s request for an adjournment of the hearing, and notified the parties that the Tribunal was unable to reschedule the hearing to dates in September 2012. The Tribunal directed the respondent TDSB to canvass with the other parties hearing dates for October 2012 and beyond.

5On June 12, 2012, the respondent TDSB sent an e-mail to the Tribunal and the other parties, which proposed four sets of three consecutive days for hearing the case in October/November 2012. On the same day, the respondent TCDSB sent an e-mail to the respondent TDSB, which was forwarded to the Tribunal and the applicant, and indicated that it was available for two of the four sets of hearing dates. The respondent TDSB then sent an e-mail to the Tribunal and the parties, which stated that it was available on two further sets of consecutive days in November 2012.

6The applicant’s next friend did not respond to any of the above e-mails. Accordingly, on June 20, 2012, the respondent TDSB sent an e-mail to her, which was copied to the Tribunal and the respondent TCDSB, and asked her to confirm if she was available for any of the sets of proposed hearing dates.

7The applicant’s next friend still did not respond. Accordingly, on June 22, 2012, Tribunal staff left a voicemail for her about this matter. She did not respond to the voicemail. Accordingly, on June 27, 2012, the Tribunal sent an e-mail to her, which directed her to select one of the proposed sets of dates for the hearing by no later than June 29, 2012. She still did not respond. Accordingly, on June 29, 2012, Tribunal staff left a further voicemail for her about this matter.

8The applicant’s next friend still did not respond. Accordingly, on July 6, 2012, the Tribunal sent her a letter by e-mail, which stated:

On June 22, 2012 and June 27, 2012 the HRTO sent you emails requesting you to provide the parties’ mutually agreeable dates to reschedule the hearing in this matter. The due date for your response has now passed and you have not responded to our request for dates.

The HRTO requires confirmation from you with respect to your intentions for this Application. If you wish to proceed with the Application, you must respond to our emails of June 22, 2012 and June 27, 2012 as directed and provide the HRTO with the parties’ mutually agreeable dates for rescheduling.

The HRTO draws your attention to Rule 5.4 of the HRTO’s Rules of Procedure, which states:

5.4 The Tribunal may finally determine an Application without further notice to any person who cannot be contacted by the Tribunal according to the contact information provided to the Tribunal by that person.

If you do not respond to this letter by July 10, 2012, the HRTO may deem the Application to be abandoned and close the file.

9The applicant’s next friend did not respond to this letter. Accordingly, on July 12, 2012, the Tribunal re-sent the letter to her by regular mail, and directed her to respond by July 23, 2012.

10To date, the applicant’s friend has not provided her availability for dates to reschedule the hearing, or otherwise communicated with the Tribunal. The Tribunal has a duty to dispose of applications fairly, justly and expeditiously. See section 40 of the Code and Rule 1.1 of the Tribunal’s Rules. This duty is not only in relation to applicants, but also in relation to respondents, who may expend significant resources responding to human rights applications, and the public, whose tax dollars fund the Tribunal. In Ouwroulis v. New Locomotion, 2009 HRTO 335, the Tribunal stated at paras. 4-7:

Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.

11The applicant’s next friend’s failure to provide her availability for dates to reschedule the hearing has effectively thwarted the Tribunal’s process, and leaves the Tribunal with no alternative but to dismiss the Application. See Eisenberg v. Seneca College of Applied Arts and Technology, 2012 ONSC 4802, at para. 13.

12In the circumstances, the applicant is deemed to have abandoned the Application, and the Application is dismissed.