Dubuque v. Stream International Canada Inc., 2012 HRTO 2102

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jodie Dubuque

Applicant

-and-

Stream International Canada Inc.

Respondent

DECISION

Adjudicator: Mark Hart

Date: November 5, 2012

Citation: 2012 HRTO 2102

Indexed as: Dubuque v. Stream International Canada Inc.

1This is an Application dated November 28, 2011 and 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 employment because of disability.

2The hearing in this matter is scheduled for November 16, 2012 in London, Ontario.

3On October 12, 2012, I issued a Case Assessment Direction (“CAD”) to the parties indicating that none of the parties had fully complied with their pre-hearing obligations under Rules 16 and 17 of the Tribunal’s Rules of Procedure.

4Pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure, each party is required to deliver to the other parties and file with the Tribunal the following material not less than 45 days prior to the first scheduled hearing day:

a. A list of all documents upon which the party intends to rely at the hearing;

b. A copy of each document contained on the list; and

c. A list of all witnesses the party intends to call at the hearing, including a brief statement summarizing each witness’ expected evidence.

5In the Notice of Confirmation of Hearing sent to the parties on May 15, 2012, the parties were reminded of these obligations and were to have delivered this material to the other parties and filed this material with the Tribunal by no later than October 2, 2012.

6In the CAD, I noted that there was no indication in the file that the applicant had disclosed to the respondent all documents in her possession that may be relevant to the issues raised in the Application, which she was supposed to have done by June 6, 2012. In addition, I noted that the applicant had not filed with the Tribunal a list of the documents she intended to rely upon at the hearing and a copy of any such documents.

7In the CAD, I noted, for example, that the Application makes reference to certain notes that the applicant states that she received from her doctor requiring certain workplace accommodations. I noted that the Tribunal did not have a copy of any such notes in its file. I indicated that if the applicant intended to rely upon any such doctor’s notes at the hearing, she needed to disclose these to the respondent and file them with the Tribunal.

8In addition, I noted that the applicant is claiming compensation for lost income. If the applicant has made any efforts to find alternate employment or has earned any employment income since her dismissal on November 26, 2011, I indicated in the CAD that any documents or records relating to these efforts or income earned needed to be disclosed to the respondent and filed with the Tribunal.

9I further noted in the CAD that the applicant also had not filed a list of the witnesses she intended to call at the hearing or statements summarizing their expected evidence. I indicated that if the applicant intended to testify on her own behalf at the hearing and only intended to give evidence in accordance with what is set out in her Application and Reply, then she simply needed to confirm this with the respondent and the Tribunal. If the applicant intended to give evidence regarding any other matter not set out in her Application or Reply, then I indicated that she needed to provide a summary of what any such further evidence would be.

10Finally, I indicated that, if the applicant intended to call any other witness(es) to testify at the hearing, then she needed to state this and provide a summary of their expected evidence.

11With regard to the respondent, I noted in the CAD that I was aware that the documents it intends to rely upon at the hearing had been disclosed to the applicant and filed with the Tribunal and that the respondent had provided a list of the witnesses it intended to call. However, I indicated that the respondent had not provided a description of the expected evidence of these two witnesses.

12As a result, I directed in the CAD that, within 14 calendar days of the date of the CAD, the parties were to deliver to each other and file with the Tribunal the following material:

a. The applicant shall provide a list of all witnesses, including herself, that she intends to call to give evidence at the hearing;

b. Both parties shall provide a statement of each witness’ expected evidence. Each statement should set out the witness’ evidence on all relevant areas to which it is proposed that they testify. For the applicant, if she is simply relying upon the information provided in the Application and Reply, this can simply be confirmed. If there are any additional areas about which she proposes to give evidence, then this needs to be stated; and

c. The applicant shall provide confirmation of all documents or materials upon which she intends to rely at the hearing, together with a copy of any such documents and materials.

13I further indicated in the CAD that, if the applicant failed to serve and file these materials within the time period indicated, this Application may be dismissed as abandoned.

14The 14-day time period for compliance with the direction given in the CAD expired on October 26, 2012. Within that time period, the respondent complied by serving and filing a statement of the expected evidence of its witnesses.

15However, the applicant, even to this date, has not made any effort to comply with the direction in the CAD. This Tribunal has no indication that she has disclosed her arguably relevant documents to the respondent, she has not served and filed the documents upon which she intends to rely at the hearing, she has not provided a list of the witnesses who she intends to call or a summary of their expected evidence, nor has she even confirmed that she herself will appear as a witness to testify on her own behalf.

16An Application to this Tribunal commences a legal proceeding, and it is the applicant’s responsibility to actively engage in the legal process and to fulfil her obligations under the Rules. While I appreciate that the applicant is self-represented, the Notice of Hearing described what her pre-hearing obligations were and the dates by which they were to be fulfilled. Lest there be any doubt about the applicant’s understanding of her obligations, I issued a CAD describing these obligations and providing examples and guidance as to what she needed to do, and yet the applicant still has made no effort to comply.

17In all of these circumstances, I find that it is appropriate to dismiss this Application as abandoned. The hearing scheduled for November 16, 2012 is hereby cancelled.