Harnock v. Campus Living Centres Inc., 2012 HRTO 2189

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laurie Harnock

Applicant

-and-

Campus Living Centres Inc. and Michael Ching’anda

Respondents

DECISION

Adjudicator: Mark Hart

Date: November 22, 2012

Citation: 2012 HRTO 2189

Indexed as: Harnock v. Campus Living Centres Inc.

1This is an Application dated June 30, 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 and reprisal.

2On November 6, 2012, I issued a Case Assessment Direction (“CAD”) in anticipation of the hearing in this matter, which is scheduled to proceed on November 28, 29 and 30, 2012, in part to address the applicant’s failure to comply with her pre-hearing obligations as set out in Rules 16 and 17 of the Tribunal’s Rules of Procedure.

3Pursuant to Rules 16 and 17, 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.

4In the Notice of Confirmation of Hearing sent to the parties on April 23, 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 15, 2012.

5To the date of the CAD, no party to this proceeding had fully complied with these obligations.

6In the CAD, I noted that I was aware that the applicant had filed a significant amount of documentation at the time she filed her Application. I indicated that if these documents represented the totality of the documents upon which she intended to rely at the hearing, then the applicant needed only confirm this to respondents’ counsel and the Tribunal. If there were any other documents upon which the applicant intended to rely, then I indicated that she needed to provide any such further documents to respondents’ counsel and the Tribunal. For example, I noted that if the applicant had any further documents relating to any efforts she has made to find alternative employment, then she should provide these to respondents’ counsel and the Tribunal.

7I also noted that the applicant had not filed a list of the witnesses she intends 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 respondents 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.

8I further indicated that if the applicant intends 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. For example, I noted that in her Application, the applicant makes reference to a co-worker who spoke to her in the summer of 2009 and who is alleged to have told the applicant that management was trying to fire her. I indicated that if the applicant intended to call this person to testify as a witness at the hearing, then the applicant needed to indicate this to the respondents and the Tribunal and provide a summary of this witness’ expected evidence. I noted that, while this Tribunal has discretion to allow a party to give evidence regarding statements made to her or him by another individual (known as “hearsay evidence”), the Tribunal generally will not rely upon hearsay evidence to make an important finding and will want to hear directly from the source of the information.

9I noted that the Application also makes reference to another employee who is alleged to have been terminated at the same time as the applicant and who also is alleged to have a disability. I indicated that if the applicant intends to call this person to testify as a witness at the hearing, then the applicant needed to indicate this to the respondents and the Tribunal and provide a summary of this witness’ expected evidence.

10I advised the applicant that if she wishes to call either of these individuals as witnesses to testify at the hearing and either of them is not willing to appear at the hearing voluntarily, then she could serve them with a summons requiring them to appear. I indicated that information regarding how to summons a witness to appear at a hearing is set out in the Tribunal’s “Guide to Preparing for a Hearing before the Human Rights Tribunal of Ontario” at page 5, which is available on the Tribunal’s website.

11With regard to the respondents, I noted in my November 6, 2012 CAD that the Tribunal had not received a copy of the Document Brief sent to the applicant’s then legal counsel in June 2012. This Document Brief has since been filed with the Tribunal on November 8, 2012, and so the respondents are now in compliance with their pre-hearing obligations.

12As a result, in my CAD dated November 6, 2012, I directed that within 14 calendar days of the date of the CAD (in other words, by November 20, 2012), the applicant was directed to do the following:

a. provide to respondents’ counsel and the Tribunal a list of all witnesses, including herself, that she intends to call to give evidence at the hearing;

b. provide to respondents’ counsel and the Tribunal a summary 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;

c. confirm to respondents’ counsel and the Tribunal whether she intends to rely upon the documents filed with her Application and shall provide any further documents or materials upon which she intends to rely at the hearing.

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

14Until October 25, 2012, the applicant was represented by legal counsel. By letter to the Registrar dated October 25, 2012, counsel advised that he was no longer representing the applicant and that the applicant would be proceeding without representation or with new representation, if she elected to do so. By this letter, the Tribunal was advised that the applicant did not have a fixed address at that time, but a new phone number was provided. When Tribunal staff attempted to contact the applicant at this phone number, it was not in service.

15On her Application, the applicant had provided an e-mail address and had indicated that documents could be delivered to her by e-mail. On November 5, 2012, the Tribunal’s Case Processing Officer (“CPO”) sent an e-mail to the applicant advising that the phone number provided to the Tribunal was not in service and asking the applicant to contact this staff member using the Tribunal’s toll-free number. On November 6, 2012, the Tribunal issued my CAD and delivered it to the applicant by e-mail.

16On November 19, 2012, the applicant contacted the Tribunal CPO. The applicant inquired about the procedure to request an adjournment, as she said she was trying to retain new counsel. The CPO confirmed that the applicant had received the November 6, 2012 CAD and confirmed that her deadline was the following day, November 20, 2012, to submit a witness list, summary of witness testimony and any relevant documents. The applicant provided her new mailing address and confirmed that she has the same telephone number (which had been disconnected for a couple of days while she was moving). The applicant stated that she does not check her e-mails daily as she must go to the library to do so.

17The Tribunal’s CPO provided the applicant with the Registrar’s e-mail address and the Tribunal’s toll-free fax number and stressed the importance of the applicant either complying with the CAD or sending in her request for adjournment by November 20, 2012.

18However, to the date of this CAD, the Tribunal has received no further contact or correspondence from the applicant or any new counsel or any request for an adjournment of the hearing. The applicant has not complied with the direction given in my CAD, has not complied with her pre-hearing obligations under the Rules, and has not filed the materials required for the hearing.

19I appreciate that the applicant was of no fixed address as of late October 2012 and was unable to continue to retain legal counsel, which may indicate that she is experiencing financial difficulties. But I am satisfied that she is able to access her e-mail address as provided to the Tribunal, and so was aware of what she needed to do in order to ensure that the hearing in this matter is able to proceed on November 28 to 30, 2012 and would have been able to communicate with the Tribunal and respondents’ counsel in writing in response to my CAD. In my view, the applicant’s failure to respond in any meaningful way to the direction provided in my CAD supports the conclusion that this matter should be deemed to have been abandoned.

20As a result, this Application is dismissed as abandoned and the hearing dates as scheduled are hereby cancelled.