HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mohamed Husain Applicant
-and-
Tortoise Restaurant Group, Robert Lefebvre, Terry Campbell, Clarke Lishman, Stuart Beeston, Gail Wright and Chris Ferringo Respondents
A N D B E T W E E N:
Mohamed Husain Applicant
-and-
Tortoise Restaurant Group, Jim Lishman, Stuart Beeston and Clarke Lishman Respondents
DECISION
Adjudicator: Alison Renton Date: December 5, 2012 Citation: 2012 HRTO 2280 Indexed as: Husain v. Tortoise Restaurant Group
APPEARANCES
Mohamed Husain, Applicant No one appearing
Tortoise Restaurant Group, Robert Lefebvre, Terry Campbell, Clarke Lishman, Stuart Beeston, Gail Wright, Respondents Paul Wearing, Counsel
Chris Ferringo, Respondent No one appearing
Introduction
1In an Interim Decision, 2011 HRTO 1658, the Tribunal ordered that the two Applications be consolidated and be heard together.
2In file 2009-02940-I, filed on July 15, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), the applicant alleges discrimination with respect to employment because of race, ancestry, place of origin, ethnic origin, and reprisal. In file 2009-04407-I, filed on December 6, 2009, the applicant alleges discrimination in employment because of reprisal.
3The applicant is represented by Cecil Norman, the personal respondent Chris Ferringo is self-represented, and the remaining personal respondents and the corporate respondent are represented by Paul Wearing.
4Initially, the hearing in these matters was scheduled for September 6 and 7, 2012. The details about those hearing dates are set out below. A hearing was set, on consent of the parties, for November 19, 2012, commencing at 9:30 am. On November 19, 2012, Mr. Wearing attended the hearing along with one of the personal respondents. Mr. Ferringo did not attend. Neither did the applicant nor his representative.
5In accordance with the Tribunal's standard practice, the hearing was adjourned for 30 minutes. At 10:00 am, the Tribunal returned to the hearing room, and orally dismissed the Application with reasons to follow as neither the applicant nor his representative had attended. The Tribunal also provided the respondents with an opportunity to make submissions with respect to the dismissal of the Application.
background
6These matters were initially scheduled for hearing on September 6 and 7, 2012 (the "September hearing dates"), pursuant to a Notice of Hearing dated February 1, 2012 (the "Notice"). The hearing did not take place on those dates. Full details as to why the hearing did not take place on the September hearing dates are set out in the Tribunal's Case Assessment Directions dated August 31, 2012, September 5 and 10, 2012 and Interim Decision dated September 5, 2012. The following is a summary of the central reasons.
7The Tribunal issued a Case Assessment Direction dated August 24, 2012 (the "August CAD"), in which it alerted the applicant to the fact that he had failed to comply with his disclosure obligations under Rules 16 and 17 of the Tribunal's Rules of Procedure. These disclosure obligations, which consist of documents and witness statements, were required to be filed by July 23, 2012. In the August CAD, the Tribunal directed the applicant to immediately comply with his disclosure obligations and warned that if he had not done so within seven days, the Application may be dismissed as abandoned. The applicant did not comply with this direction.
8Shortly before the September hearing dates, the applicant, rather than his representative, wrote to the Tribunal and requested an adjournment of the September hearing dates for personal and medical reasons. Before determining the adjournment request, in a Case Assessment Direction dated August 31, 2012, the Tribunal directed the applicant's representative to confirm whether or not he was still representing the applicant and, if so, to advise the Tribunal whether or not an adjournment request was still being requested. The Tribunal also provided the respondents with a copy of the adjournment request and gave them an opportunity to respond to the request.
9The respondents represented by Mr. Wearing objected to the adjournment request. In their objections, counsel wrote that the applicant's representative had contacted him a couple of days before the applicant's adjournment request seeking the respondents' agreement to mediate the Applications (the respondents did not agree to mediation). Counsel submitted that the applicant's representative did not mention anything about an adjournment request. The applicant's representative did not appear to respond to the Tribunal's direction.
10The Tribunal denied the applicant's request for adjournment, for the reasons set out in its Interim Decision dated September 5, 2012. At that point, it was my understanding that the applicant's representative had not communicated with the Tribunal. However, subsequent to the issuance of the Interim Decision, it came to my attention that the applicant's representative's office manager had emailed the Tribunal on September 4, 2012 after the Tribunal's offices had closed. This email had not been provided to me before the Interim Decision was issued.
11In the email, the applicant's representative's office manager confirmed that the applicant's representative was still representing the applicant, and that the applicant was still seeking an adjournment, although based upon different information from what the applicant stated when he wrote to the Tribunal requesting an adjournment. The office manager also advised that "...the documents were incomplete and were sent out this morning to the parties and will be sent to the Tribunal Thursday". In a Case Assessment Direction dated September 5, 2012, the Tribunal confirmed that the applicant's adjournment request was denied and noted the hearing was scheduled to commence on September 6, 2012 at 9:30 a.m.
12Subsequent to issuing those rulings, and after the Tribunal's offices had closed for the day, the applicant's representative's office manager emailed the Tribunal providing information about the applicant's adjournment request, which was consistent with the original request, and again requesting that the hearing be adjourned. She also faxed to the Tribunal two medical documents and a prescription receipt for the applicant. The first medical note appeared to be dated August 30 and states that the applicant was seen "In office today", and the second, written by a different doctor, was dated September 5, and indicates that the applicant "is/was unable to attend school/work from 09/06/2012 to 09/09/2012 due to medical illness...Not able to work for medical reasons".
13On September 6, 2012, at the hearing, Mr. Wearing and some of his clients were present. Mr. Ferringo was not. The applicant and his representative were not present, although the representative's office manager, Roseanne Reech, who identified herself as a licensed paralegal, and stated that she would represent the applicant, attended the hearing. She requested an adjournment on behalf of the applicant. She advised that the applicant's representative was out of the country, in Ghana, having left on August 26 or 27, 2012 and would return mid-October 2012. She was under the impression, she stated, that the applicant's disclosure obligations had already been sent by his representative to the Tribunal. Mr. Wearing, on behalf of his clients, opposed the applicant's adjournment request and submitted that the Applications should be dismissed for, amongst other reasons, the applicant's failure to comply with the Tribunal's directions. He again confirmed that the applicant's representative contacted him before the adjournment request was made, but failed to advise that he would be out of the country for the September hearing dates or that the applicant would be seeking an adjournment.
14Problems arose at the hearing with Ms. Reech's standing to represent the applicant before the Tribunal as Ms. Reech's name did not appear on the Law Society of Upper Canada's ("LSUC") directory of lawyers and paralegals. According to the Tribunal's Policy on Representation Before the Tribunal, a party, including an applicant, can be self-represented, have licensed legal representation, or be represented by someone who falls within a list of exemptions as set out on the LSUC's website.
15Ms. Reech then advised the Tribunal that her license was issued under the name "Rosanna Bechard", which is her maiden name, with her first name misspelled. A "Rosanna Bechard" was found in the Law Society's directory, however, with a "Suspended Administratively" status. The Tribunal stated that with a suspended license, Ms. Reech had no standing to represent the applicant and that it would issue a Case Assessment Direction about next steps as well as schedule a continued hearing. As Ms. Reech had no standing to represent the applicant, the September hearing dates were effectively cancelled. The Tribunal canvassed a further hearing date from dates upon which the parties were available including November 19, 2012. A notice dated September 7, 2012 for the continued hearing date of November 19, 2012 was issued to the parties, via their representatives, and Mr. Ferringo.
16A Case Assessment Direction dated September 10, 2012 (the "September CAD"), was issued to the parties' representatives, Mr. Ferringo, and the applicant himself. In the September CAD, the Tribunal set out the history, as described above, confirmed November 19, 2012 as the next hearing date, and set out directions and a timetable by which the applicant was to comply with his disclosure obligations and Ms. Reech about her Law Society standing failing which the Applications would be dismissed. The Tribunal stated that the November 19 hearing date may be converted into a telephone conference call and if so the Tribunal may issue further directions before it.
17The applicant complied with the directions in the Tribunal's September CAD pertaining to this disclosure obligations and Ms. Reech's paralegal status is no longer suspended by the Law Society such that no further written rulings were issued by the Tribunal. The Tribunal did not convert the November 19 hearing into a telephone conference call.
18On Friday, November 16, 2012 at approximately 2:50 p.m., the Tribunal received two documents by facsimile pertaining to the applicant. The first was a medical form from an Urgent Care Centre in Mississauga dated November 16, 2012 on which it was written that the applicant "...is/was unable to attend school/work from 11/19/2012 to 11/19/2012 due to medical illness". Apart from the applicant's name and the inclusion of the specific date, the rest of the information was pre-printed. The second document was a prescription written for the applicant by "Dr. Matt Cooper (M)" and generated by him on "2012-Nov-16 2:45 PM". There was no covering page accompanying these documents, and nothing to indicate who they were from or where they were faxed from.
19The Tribunal was uncertain as to whether the applicant's representative and Mr. Wearing received this information, so the documents were both emailed and faxed to them by the Tribunal on November 16 advising that the Tribunal had received them. They were also emailed to Mr. Ferringo. Prior to November 19, 2012, the Tribunal did not receive a request to adjourn the November 19 hearing date from either the applicant or his representative, nor was there a response to the medical documentation that the Tribunal sent to the parties. A Tribunal staff member has advised me that the applicant's representative called her on November 16 shortly before the Tribunal received the medical documentation asking if the November 19 hearing was by teleconference to which she responded that the hearing was in-person, commencing at 9:30 a.m., as set out in the September 7 Notice.
20As stated above, neither the applicant, his representative nor Ms. Reech attended the hearing on November 19. The Tribunal orally dismissed the Applications and Mr. Wearing submitted that the Applications should be dismissed as abandoned and for abuse of process.
analysis
Abandonment
21The Tribunal has made it clear on numerous occasions that adjournments, particularly at the last minute, are not automatically granted. In its Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments, it states that:
The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a mediation or hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant an adjournment, even when all parties consent.
22In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 4, the Tribunal explained why, even when there is consent, an adjournment of a scheduled hearing will not be granted absent exceptional circumstances:
The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceedings must consider, but the fact that Tribunal time reserved for the resolution of those parties' disputes will no longer be used. For that reason, among others, the Tribunal's Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments indicates that even adjournment requests made on consent of the parties more than five [now fourteen] days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of the parties in having hearings scheduled according to their and counsel's availability with these broader interests by requiring that a party advise within five [now fourteen[ days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.
23Despite the medical information faxed to the Tribunal on November 16 indicating that the applicant was unable to attend school or work on November 19 for medical reasons, the Tribunal did not receive a request to adjourn the November 19 hearing. While it is not clear that an adjournment request was even being made, it appears that whoever faxed the medical information to the Tribunal proceeded on the assumption that this was sufficient information to secure an adjournment of the hearing.
24In these cases, I am satisfied that both the applicant and his representative received notice of the November 19 hearing date. The September CAD confirmed the November 19 hearing date, which was a consensual hearing date, and was issued to both the applicant and his representative. The September 7 notice was sent to the applicant's representative. In addition, the applicant's representative contacted a Tribunal staff member on November 16 who confirmed the date and time of the hearing. Accordingly, when neither the applicant nor his representative attended the November 19 hearing, the Tribunal was entitled to conclude that the applicant abandoned his Applications. Accordingly, the Applications are dismissed as abandoned.
Abuse of Process
25In addition to finding that the applicant abandoned his Applications, I have also concluded that the Applications are dismissed because of abuse of process.
26In Ouwroulis v. New Locomotion, 2009 HRTO 335, the Tribunal stated at paras. 4 to 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.
27The Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, as amended, provides the Tribunal with the power to "make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes".
28There are many aspects of this case, which are highlighted in this Decision and in the Tribunal's previous rulings, that demonstrate, by either the applicant or his representative, or both, an unwillingness to diligently prosecute these Applications or a deliberate attempt to delay these Applications for reasons that are not readily apparent or disclosed by the applicant or his representative. While it is not necessary for the Tribunal to make a finding on the motives or actions of the applicant and his representative, it is sufficient for the purposes of these Applications to note that through non-compliance with the Tribunal Rules concerning disclosure, adjournments, and legal representation before the Tribunal, three properly scheduled hearing dates, including one that was selected on consent of the parties, have been exhausted without a hearing on the merits.
29Throughout these Applications, the applicant had legal representation. Notwithstanding this fact, material was sent to the Tribunal concerning these Applications that appeared to have been sent by the applicant himself. This material, on its face, assumed that an adjournment would be granted automatically as the applicant indicated that he was not able to attend the hearing for various reasons. Further, there is the information that before the applicant wrote to the Tribunal, the applicant's representative had a discussion with counsel for some of the respondents to have the case mediated, but made no mention was made by the applicant's representative that an adjournment of the September hearing dates would be sought, that the applicant was not able to attend the hearing, or that the representative himself would be out of the country. More importantly, there is no communication from the applicant's representative to the Tribunal seeking to adjourn the hearing dates. Instead, the adjournment request came from the applicant's representative's office manager, the day before the hearing and after the applicant indicated that he was unable to attend the hearing and after the Tribunal issued a ruling, and set out reasons that were inconsistent from those raised by the applicant.
30For the first two hearing dates, the applicant himself advised that he would not be able to attend the hearing, and twice the Tribunal specifically declined to adjourn the hearing. These decisions were made before the Tribunal received the applicant's medical documentation, which was faxed to the Tribunal the night before the first day of hearing and when the Tribunal's offices were closed. For these hearing dates, the applicant's representative, the Tribunal learned, was unavailable as he was out of the country and the applicant did not attend. The individual who did attend on the applicant's behalf did not have standing before the Tribunal to represent the applicant as her license had been suspended by the LSUC. The applicant's disclosure was ultimately provided, but after the Tribunal issued various rulings requiring its production.
31For the third hearing date, neither the applicant nor his representative appeared at the hearing and no explanation for their non-attendance has been provided to the Tribunal. While there is a medical note indicating that the applicant was not able to attend school or work on the date of the hearing, neither the applicant nor his representative requested an adjournment prior to the hearing date. In fact the representative had been advised by a Tribunal staff person shortly before the Tribunal received the medical documentation that the hearing was proceeding as scheduled.
32In these circumstances, and bearing in mind the Tribunal's responsibility to ensure that public resources are used effectively and an applicant's responsibilities pertaining to the legal process he or she commenced, the Tribunal finds that the applicant's conduct, and/or that of his representative, constitutes an abuse of the Tribunal's processes such that the Applications are dismissed.
Dated at Toronto, this 5th day of December, 2012.
"Signed by"
Alison Renton Vice-chair