HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Alexis Balbontin
Applicant
-and-
Joyce Fruit Market Ltd. and Nick Stillo
Respondents
DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Balbontin v. Joyce Fruit Market Ltd.
appearances
Alexis Balbontin, Applicant ) No one appearing
Joyce Fruit Market Ltd. and Nick Stillo, ) Self-represented
Respondents )
INTRODUCTION
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), but failed to appear for the hearing of the merits of his Application. I issued an oral decision dismissing his Application with written reasons to follow. The following are my reasons.
BACKGROUND
2On March 10, 2010, the applicant filed an Application with the Tribunal, and on November 9, 2010, the respondents filed a Response. On June 2, 2011, the parties attended a mediation at the Tribunal, which did not result in a settlement of the case.
3On November 14, 2011, the Tribunal issued a Notice of Confirmation of Hearing which informed the parties that a hearing of the Application was scheduled for April 11, 2012 at 655 Bay Street, 14th Floor, Toronto, commencing at 9:30 AM. The hearing commenced as scheduled, but in his opening statement, the applicant, whose mother tongue is Spanish, requested an adjournment of the hearing on the basis that he was not sufficiently proficient in English to proceed, and needed the assistance of a professional interpreter. The respondents opposed the applicant’s adjournment request on the basis that the applicant should have known well in advance of the hearing that he would need a professional interpreter, and that the respondents would have to take another day off work if the hearing was adjourned.
4In view of the fact that the applicant was an unrepresented layperson, I granted his request to adjourn and reschedule the hearing. However, because of my concerns about the applicant’s lack of preparation for the hearing and the unrecoverable costs incurred by the respondents in attending the hearing day, I ordered that the next hearing dates would peremptory to the applicant, meaning that no further adjournment or rescheduling requests would be granted.
5The Tribunal consulted with the parties about their availability for a rescheduled hearing, and on September 4, 2012, issued a Notice of Confirmation of Hearing to the parties which informed them that the hearing would take place on December 3 and 4, 2012 at 655 Bay Street, 14th Floor, Toronto, commencing at 9:30 AM. The Tribunal also arranged for a professional interpreter to be present during the hearing.
6On November 29, 2012, the respondents sent an e-mail to the Tribunal and the applicant, which requested that the Application be dismissed because the applicant had indicated by e-mail that he had no intention of calling any witnesses or presenting any documents at the hearing. The applicant did not respond to the respondents’ e-mail.
7On December 3, 2012, the respondents and the interpreter attended the hearing at the place and time that was set out in the Notice of Confirmation of Hearing, but the applicant did not appear. I commenced the hearing at 10:45 AM after confirming with Tribunal staff that the applicant had not called in to explain his absence, and then dismissed the Application.
ANALYSIS
8Based on the above facts, I am satisfied that the applicant was aware of the date, location and time of the hearing, but decided not to attend. The applicant commenced a legal proceeding when he filed his Application with the Tribunal. It is the applicant’s responsibility to attend the hearing and provide evidence in support of the allegations raised in the Application. In the absence of such evidence, the Tribunal is unable to proceed with the Application and there is no onus or responsibility on the respondents to provide evidence in response to allegations.
9Furthermore, 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 of Procedure. 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 to 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.
10The respondents expended significant resources responding to the Application, participating in a mediation, and attending two hearing dates. The respondents are unable to recover any costs resulting from this process, including the applicant’s non-attendance at the hearing, because this Tribunal has no jurisdiction to award costs. See Dunn v. United Transportation Union, Local 104, 2008 HRTO 405. The Tribunal has also expended significant resources processing the Application, scheduling and holding a mediation, scheduling and holding two hearing dates, and arranging and paying for a professional interpreter to be present for the rescheduled hearing. In these circumstances, it would not be fair, just and expeditious to reschedule the hearing again.
ORDER
11The Application is dismissed.
Dated at Toronto, this 6th day of December, 2012.
”signed by”
Ken Bhattacharjee
Vice-chair