Ian Eisenberg v. Seneca College of Arts and Technology, 2012 HRTO 319

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ian Eisenberg

Applicant

-and-

Seneca College of Arts and Technology

Respondent

DECISION

Adjudicator: Eric Whist

Date: February 14, 2012

Citation: 2012 HRTO 319

Indexed as: Eisenberg v. Seneca College of Arts and Technology

1This Application was filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application alleges discrimination in the provision of services on the basis of disability.

BACKGROUND

2On May 17, 2011 the Tribunal issued a Case Assessment Direction (“CAD”) directing that a summary hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure. The issue to be determined in a summary hearing is whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed. The CAD indicates that the applicant should be prepared to make argument as to why his Application should not be dismissed for having no prospect for success and point to the evidence on which the applicant will prove a link between the respondent’s actions and the ground of disability.

3On March 29, 2011 the applicant filed a Request for an Order during Proceedings (“RFOP”) requesting the production of a number of specific documents from the respondent, principally emails exchanged between respondent staff.

4On August 29, 2011 the Tribunal’s Registrar wrote to the applicant to indicate that as the Application was proceeding to a summary hearing pursuant to the Tribunal’s CAD of May 17, 2011 the applicant’s RFOP requesting the production of documents would be dealt with after the summary hearing, if necessary.

5On October 17, 2011 the Tribunal issued its Notice of Summary Hearing setting the summary hearing for December 19, 2011. The Tribunal subsequently agreed to reschedule this hearing when the respondent indicated, on a timely basis, that it was unable to attend on the scheduled date and later agreed to change the summary hearing by teleconference to an in-person summary hearing at the request of the applicant.

6On December 27, 2011 the Tribunal wrote to the parties asking for their available dates for a rescheduled summary hearing.

7On January 3, 2012 the applicant wrote to the Tribunal to state that he would not reply to the request to provide his available dates for the purposes of scheduling the summary hearing until the Tribunal directed the respondent to produce five documents that he had requested submitting that these documents were critical to his case.

JANUARY 27, 2012 CASE ASSESSMENT DIRECTION

8On January 27, 2012 the Tribunal issued a CAD indicating that the Tribunal would not order the production of documents prior to the summary hearing and directing the applicant to provide dates for which he would be available for the summary hearing.

9The CAD states that it appears from many of the materials the applicant had filed with the Tribunal that he may have believed that a summary hearing would determine the merits of his case but that this is not the purpose of a summary hearing. The CAD explains that the purpose of a summary hearing is to determine whether an applicant has a reasonable prospect of proving, on a balance of probabilities, that his or her rights under the Code were violated and that if the applicant succeeds in demonstrating that his Application has, in whole or in part a reasonable prospect of succeeding, it proceeds to a full hearing on its merits.

10The CAD further states that a summary hearing is not intended to be a process in which an applicant leads evidence through oral testimony, documents or the testimony of other witnesses. It is a process in which an applicant identifies the evidence that he or she has or that may be reasonably available and makes arguments as to why the applicant believes that this evidence shows that his or her Application has a reasonable prospect of succeeding. The CAD states that it is understood that evidence an applicant identifies as important may sometimes be in the control of a respondent. The CAD indicates that it would be open to the applicant at his summary hearing to refer to evidence he believes supports his Application including the emails he alleges are in the possession of the respondent. The Tribunal’s practice is to proceed with requests for the production of documents following a summary hearing and prior to a hearing on the merits of an Application, if necessary.

11The CAD directed the applicant to provide dates for which he would be available for the summary hearing within ten days of the CAD and indicating that failure to do so might result in the applicant’s Application being declared abandoned.

12On February 1, 2012 the applicant contacted the Tribunal to indicate that he would no longer be corresponding with the Tribunal. The applicant has not provided available hearing dates within ten days of the January 27, 2012 CAD, as directed.

13Given these circumstances, the Application is dismissed as abandoned and the Tribunal will close its file.