Richard Wadden v. Takhar Collection Services Ltd., 2012 HRTO 2076

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Wadden

Applicant

-and-

Takhar Collection Services Ltd.

Respondent

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott

Date: October 31, 2012

Citation: 2012 HRTO 2076

Indexed as: Wadden v. Takhar Collection Services Ltd.

WRITTEN SUBMISSIONS

Richard Wadden, Applicant

Self-represented

1By Notice of Confirmation of Hearing dated January 9, 2012, this matter was set down for hearing on July 12 and 13, 2012. The Notice of Confirmation of Hearing directed the parties to comply with Rules 16 and 17 of the Tribunal’s Rules of Procedure by exchanging with one another and filing with the Tribunal the documents they intended to rely upon at the hearing, a list of their witnesses and a summary of their witnesses’ anticipated evidence by no later than May 28, 2012.

2The July hearing dates were cancelled when the applicant advised the Tribunal on June 11, 2012 that he had not received the Notice of Confirmation of Hearing dated January 9, 2012. It was unclear why the Notice of Confirmation of Hearing had not been received by the applicant when it was sent to the address identified by the applicant on his Application.

3A second Notice of Confirmation of Hearing dated June 29, 2012 was sent to the parties (at the same addresses as the first notice) and new hearing dates were set for September 19 and 20, 2012. The parties were also given a new date to comply with their pre-hearing disclosure obligations under Rules 16 and 17 of the Tribunal’s Rules of Procedures of August 7, 2012.

4The parties did not provide their required materials by August 7, 2012.

5In Case Assessment Direction (“CAD”), dated September 5, 2012, the Tribunal directed the parties to provide the required materials immediately, and in any event, within seven (7) days of the date of the CAD - September 12, 2012. The parties were advised there were serious consequences for the case if they failed to meet their obligations. The respondent was advised the Tribunal may take any or all of the steps in Rule 5, including not permitting the respondent to call any witnesses at the hearing. Importantly, the applicant was advised the Application may be dismissed as abandoned.

6The respondent filed its materials on September 7, 2012. The applicant did not file his materials.

7In Decision 2012 HRTO 1755, dated September 17, 2012, the Application was dismissed as abandoned. The Decision was sent to the applicant by e-mail during the morning of September 18, 2012.

8The applicant attended the Tribunal’s hearing centre on September 19, 2012.

9The applicant seeks reconsideration of the Decision dismissing his Application. In his Request for Reconsideration, filed on October 15, 2012, the applicant states he did not receive notice of the proceeding or hearing.

10The Request for Reconsideration was sent to the Tribunal by electronic mail. The e-mail addressed used by the applicant was the same address used by the Tribunal to send him the Decision dismissing the Application as abandoned.

PRE-HEARING OBLIGATIONS

11The obligation to file a list of witnesses, a summary of their evidence, and a copy of the documents intended to be relied upon, no later than 45 days prior to the hearing, is set out in Rules 16 and 17 of the Rules of Procedure and summarized in the Guide to Preparing for a Hearing before the Human Rights Tribunal; available on the Tribunal’s website. These obligations are also clearly set out in the Notice of Hearing sent to all parties. Each Notice of Hearing includes the particular date by which pre-hearing steps must be taken.

12When one or both parties do not comply with their obligations, the Tribunal generally issues a CAD directing them to do so within seven days. The CAD states that a failure by the applicant to file required materials within this time may result in the dismissal of the Application, and/or that a failure by the respondent to file required materials may result in the Tribunal taking any or all of the steps in Rule 5, including not permitting the respondent to call evidence at the hearing.

13The Tribunal decision in C.D. v. Wal-Mart Canada, 2010 HRTO 426 at para. 7, sets out the importance of pre-hearing disclosure in the Tribunal process:

The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent.

14Ensuring the filing of documents and witness statements, or a confirmation that a party will rely only on the Application or Response, promotes fairness and the effective use of hearing time.

15In this case, the Case Assessment Direction dated September 5, 2012, was sent to the parties by e-mail and regular mail on that date. Neither piece of correspondence was returned to the Tribunal as undeliverable. The first paragraph stated:

This Case Assessment Direction alerts the applicant to the fact that he has failed to comply with the obligations under Rules 16 and 17 to deliver to every other party and file with the Tribunal a witness list, witness statements, and copies of documents the party intends to rely upon no later than 45 days prior to the hearing. There are serious consequences for the case if this step is not taken, set out at the end of this Case Assessment Direction.

16The last paragraph stated:

DIRECTION

The applicant is directed to immediately file the materials required under Rules 16 and 17, and if the applicant has not done so within 7 days of the date of this Case Assessment Direction, the Application may be dismissed as abandoned.

RECONSIDERATION REQUEST

17In support of his Request for Reconsideration, the applicant makes various arguments. He states he did not abandon the hearing as is evident from the fact that he attended the hearing on September 19, 2012. The applicant states he failed to provide documents because he was unaware that he needed evidence against his former employer and that his former employer should be required to “back up” their reason for dismissing him from his employment. The applicant also states he brought “everything with him” to the hearing. The applicant raises the impact of the termination on his mental health, but does not draw a link between his mental health and the failure to provide pre-hearing disclosure.

DECISION

18The Request for Reconsideration is dismissed.

19The Tribunal’s jurisprudence is clear that a Request for Reconsideration is not an appeal and is granted only in limited circumstances. There must be more than disagreement with a decision to find that the conditions in Rule 26.5 have been reached. As the Tribunal stated in Sigrist and Carson v. Toronto District School Board, 2008 HRTO 34, at paras. 56-57:

As is evident from the Rules and made explicit in Practice Direction #4, reconsideration is not an appeal. It is not an opportunity to re-argue a case. Once the parties to a case have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

20The Tribunal’s records indicate there was no contact from the applicant between the date of the Second Notice of Confirmation of Hearing of June 29, 2012 and the dismissal of the Application on September 17, 2012. The Tribunal’s records indicate the applicant left a telephone message on September 19, 2012 advising the Tribunal that he attended the hearing centre on September 19, 2012 and was advised his case was dismissed as abandoned. The applicant only contacted the Tribunal when he learned the Application was dismissed. If he had any questions regarding his pre-hearing obligations he could have contacted the Tribunal. He did not.

21In Ouwroulis v. New Locomotion, 2009 HRTO 335 at paras. 4-7 the Tribunal set out the reasons why parties must comply with their respective disclosure obligations:

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. [emphasis added]

22The applicant did not comply with the obligations set out in the Notice of Hearing. He took no action following the CAD, which clearly alerted him that a failure to do so could result in the dismissal of his Application. The applicant suggests that he did not respond because he did not know that he required evidence. He also states that he brought everything with him to the hearing. The CAD clearly sets out the applicant’s disclosure obligations. While the applicant is self-represented, and entitled to some latitude, there is no reason he could not have communicated with the Tribunal or taken steps to comply with his obligations upon receiving the Notice of Confirmation of Hearing and the CAD. The fact that he “brought everything to the hearing” demonstrates he was able to comply with his pre-hearing obligations, but chose not to.

23Reconsideration is only granted in exceptional circumstances: see Sigrist and Carson v. London District Catholic School Board et al, supra. In this case, there is no lack of notice as the applicant attended the hearing on September 19, 2012. Given the applicant’s failure to comply with his obligations, and failure to heed a clear warning that not doing so could lead to the dismissal of his Application and the resulting cancellation of the hearing, there are no circumstances that outweigh the important interest in the finality of Tribunal decisions.

24The Request for Reconsideration is dismissed.