Lee v. Kawartha Pine Ridge District School Board, 2012 CanLII 35408

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Lee

Applicant

-and-

Kawartha Pine Ridge District School Board and Canadian Union of Public Employees

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: June 21, 2012

Citation: 2012 HRTO 1228

Indexed as: Lee v. Kawartha Pine Ridge District School Board

APPEARANCES

Robert Lee, Applicant ) No-one appearing

Kawartha Pine Ridge District School ) Board, Respondent ) Brenda Bowlby, Counsel

Canadian Union of Public Employees, ) Dave Steele, Counsel Respondent )

INTRODUCTION

1This is an Application under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), in which the applicant alleges that the respondents discriminated against him on the basis of disability, family status, and marital status with respect to employment and reprised against him contrary to the Code.

2Specifically, in his Application to the Tribunal, the applicant, formerly a custodian with the respondent school board, contends that his former employer infringed his rights under the Code by ceasing to meet his alleged disability-related needs in the workplace in or around late 2008 or early 2009; and by subsequently terminating his employment, among other things.

3As for the respondent trade union, the applicant contends that it infringed his rights under the Code by failing to defend him from the respondent employer's actions.

4Pursuant to a Case Assessment Direction ("CAD") dated January 5, 2012, the Tribunal directed, on its own initiative, that a summary hearing be convened pursuant to Rule 19A of the Tribunal's Rules of Procedure to determine whether the Application as against the respondent trade union, Canadian Union of Public Employees ("CUPE"), should be dismissed on the basis that there was no reasonable prospect that the Application as against CUPE would succeed. In its Case Assessment Direction, the Tribunal advised the parties that the Tribunal would dismiss the Application as against CUPE if, following the summary hearing, it found that the Application had no reasonable prospect of success.

5The summary hearing was held by teleconference on April 20, 2012. The respondents participated in the summary hearing and were represented by counsel. The applicant did not attend the summary hearing.

6In the circumstances, the Application as against CUPE is dismissed as abandoned.

BACKGROUND

7On January 30, 2012, and in accordance with its January 5, 2012 CAD in this matter, the Tribunal sent the parties a Notice of Summary Hearing advising that the summary hearing would be convened by teleconference on April 20, 2012 at 9:30 a.m. and instructing the parties how to connect to the call.

Respondent's Request to Dismiss

8On February 2, 2012, the respondent employer filed its Response to the Application. In its Response, the respondent employer took the position that the Application ought to be dismissed pursuant to s.53(8) of the Code on the basis that the subject-matter of the Application was the same or substantially the same as the subject-matter of a complaint that had been previously filed by the applicant with the Ontario Human Rights Commission ("the Request to Dismiss").

9On February 19, 2012, the applicant filed a response to the Request to Dismiss in which he asks the Tribunal to "dismiss the respondent's Request" and to allow his Application to continue in the Tribunal's process.

10On March 4, 2012, the applicant wrote a letter purporting to set out "further proof" that he had been discriminated against by the respondent employer and asking the Tribunal to "take [his] case to the next step."

Applicant's Production Request

11On or about March 20, 2012, the applicant filed a Request for an Order during Proceedings (Form 10) seeking the production of certain documents by the respondent employer (i.e. documents allegedly provided to it by the applicant's uncle and/or notes taken during meetings between the respondent employer and the applicant's uncle). The applicant indicates that he seeks the production of such documents so that he can verify whether his uncle provided the respondent employer with stolen information and/or documents.

12In its response to the applicant's March 20, 2012 production request, the respondent employer points out that the Application has not yet reached a point in the Tribunal's process at which the production of documents is required pursuant to Rules 16 and 17 of the Tribunal's Rules of Procedure. The position taken by the respondent employer is consistent with information that the Tribunal provided the applicant in a letter dated March 1, 2012, which read in relevant part:

The applicant is requested to review the Guide to Preparing for a Hearing Before the HRTO available on the HRTO's website at www.hrto.ca; which provides information regarding disclosure. As per the Guide, if the application proceeds to a hearing on the merits, the parties will have an obligation to disclose relevant documents 21 days following the Notice of Hearing.

If a party seeks production of additional arguably relevant documents from a party or non-party, it may request a production order from the HRTO after the deadlines for disclosure have passed. (emphasis added)

Applicant's Request for Adjournment of Summary Hearing

13On March 8, 2012, the applicant sent a letter to the Tribunal requesting that the summary hearing be rescheduled because he was not available on April 20, 2012.

14On March 12, 2012, the respondent employer wrote to the Tribunal opposing the applicant's rescheduling request and pointing out that the applicant had not provided any reasons in support of his request to adjourn the April 20, 2012 hearing.

15On March 22, 2012, the Tribunal advised the applicant by telephone that he was required to put the reasons for his adjournment request in writing so that the Tribunal could determine his request.

16On March 25, 2012, the applicant requested that the summary hearing be adjourned on the basis that, due to unspecified "personal reasons", he would not be at home and would not be available to participate in the summary hearing as scheduled. In addition, the applicant submitted that he had no lawyer to represent him at the summary hearing because he could not afford one. In his March 25, 2012 letter, the applicant also pointed out that the Tribunal had not yet dealt with the employer's February 2012 Request to Dismiss or the applicant's March 20, 2012 production request. He also alleged that both respondents had improperly urged the applicant to accept a grievance settlement that, in his view, would have required him to "sign away" his human rights. The applicant concluded his March 25, 2012 letter by stating that the Tribunal needed to "do the right thing" and allow his Application to continue against both respondents.

17By Interim Decision dated April 3, 2012, the Tribunal found that the applicant had failed to establish that he was unable, for legitimate reasons, to participate in the summary hearing as scheduled and denied the applicant's request for an adjournment. The Tribunal directed that the summary hearing would proceed as scheduled on April 20, 2012: Lee v. Kawartha Pine Ridge District School Board, 2012 HRTO 682.

18The applicant clearly disagreed with the Tribunal's decision not to adjourn the summary hearing. On April 4, 2012, he wrote the Tribunal reiterating that he was not available to attend the April 20, 2012 summary hearing due to "personal reasons" and that this should have been accepted by the Tribunal as sufficient reason to delay the hearing. In his April 4, 2012 correspondence, the applicant also repeated his earlier suggestion that the summary hearing be put "on hold" until the Tribunal decided his February 19, 2012 and March 20, 2012 "requests". (As noted above, the applicant's February 19, 2012 "request" was actually a response to the employer's Request to Dismiss all or part of the Application pursuant to s.53(8) of the Code.) He stated that if the April 20, 2012 summary hearing proceeded without him, he would "file an appeal against human rights."

19On April 5, 2012, the applicant wrote two further letters to the Tribunal asking that the Tribunal "put a stop" on the April 20, 2012 summary hearing and continue his case against both respondents. He complained that the Tribunal was "railroading" him through a summary hearing despite the fact that he had presented "evidence" that his human rights had been violated by both respondents.

20The Tribunal did not respond to the applicant's communications of April 4 and 5, 2012, and they did not come to my attention until the eve of the summary hearing.

21In accordance with the Tribunal's Case Assessment Direction of January 5, 2012, the Notice of Summary Hearing dated January 30, 2012, and the Interim Decision of April 3, 2012, I convened the summary hearing as scheduled at 9:30 a.m. on April 20, 2012. The respondents were present on the teleconference hearing and were represented by counsel. The applicant did not attend the summary hearing.

22The applicant has not communicated with the Tribunal since April 5, 2012.

ANALYSIS

23At the outset of the summary hearing, I sought submissions from those present on the teleconference as to whether the summary hearing ought to proceed in the absence of the applicant. Both respondents submitted, and I agreed, that the summary hearing ought to proceed as scheduled.

24There is no question that the applicant was fully aware that the summary hearing would be proceeding as scheduled on April 20, 2012. It is evident from the applicant's March 2012 request for an adjournment that he received the Tribunal's January 30, 2012 Notice of Summary Hearing setting out the time and date of the hearing. In addition, the Tribunal confirmed that the hearing would proceed as scheduled on April 20, 2012 in the April 3, 2012 Interim Decision denying the applicant's adjournment request.

25The question then became whether the applicant, notwithstanding that he had proper notice of the summary hearing, had provided some reasonable explanation for his failure to attend, such that the summary hearing ought to have been adjourned. In my view, he had not.

26In its April 3, 2012 Interim Decision in this matter, the Tribunal had already found that the applicant was not entitled to an adjournment of the summary hearing for the reasons set out in his March 25, 2012 letter to the Tribunal. Nor did the applicant identify any other circumstances in his subsequent correspondence that led me to conclude that the applicant was unable, for legitimate reasons, to participate in the summary hearing, such that the hearing ought not to proceed as scheduled.

27In his April 4 and 5, 2012 letters to the Tribunal, the applicant reiterated his earlier view that the Tribunal should have "delayed" the summary hearing based on the applicant's "personal reasons". In one of his April 4, 2012 letters to the Tribunal, the applicant advised that he had started working at a new job, four days per week. It is not clear from the letter whether the applicant was attempting to suggest that he was unable to attend the summary hearing on April 20, 2012 because he was scheduled to work on that day. Even if I were to draw that inference, however, the applicant's being scheduled to work would not warrant an adjournment of the summary hearing. Parties to proceedings before the Tribunal, as well as their representatives and witnesses, are regularly expected to absent themselves from their day-to-day obligations, including work, in order to participate in proceedings before the Tribunal. I agree with the respondent employer that the fact that the applicant may have been scheduled to work on April 20, 2012 did not justify his failure to attend the summary hearing, particularly in the absence of any suggestion that the applicant had attempted to get time off work in order to attend the summary hearing, but was unable to do so.

28To the extent that the applicant may have refused and/or failed to attend the summary hearing because he felt that the Tribunal ought to be determining his February 19 and March 20, 2012 "requests" prior to or instead of convening a summary hearing, this was also not a reasonable explanation for the applicant's failure to attend. The Tribunal was well within its authority to determine the order in which issues in this proceeding would be considered and determined (see Rule 1.7(g) of the Tribunal's Rules of Procedure). It is clear that the applicant disagreed with the Tribunal's decision to determine whether the Application as against CUPE ought to be dismissed as having no reasonable prospect of success before addressing other issues in the case. However, the applicant's disagreement with the Tribunal's decision to convene a summary hearing before determining the respondent employer's Request to Dismiss or the applicant's production request was not a valid reason for his failure and/or refusal to participate in the Tribunal's process.

29In any event, as the respondents pointed out, the documents sought by the applicant in his March 20, 2012 production request appear to have nothing to do with his Application as against CUPE and are therefore irrelevant to the issues addressed at the April 20, 2012 summary hearing. Nor do I see how the applicant's request to dismiss the employer's Request to Dismiss had any bearing on the issues to be determined at the summary hearing.

30For these reasons, I ruled orally at the April 20, 2012 summary hearing that I was not prepared to adjourn the hearing in the absence of any reasonable explanation for the applicant's failure to attend. I directed that the summary hearing would proceed as scheduled in the absence of the applicant. I then heard submissions from the respondents with respect to whether the Application ought to be dismissed as abandoned and/or as having no reasonable prospect of success.

31Having considered the matter, I find that the Application as against CUPE ought to be dismissed as abandoned.

32The Notice of Summary Hearing that was sent to the parties by the Tribunal on January 30, 2012 set out the consequences of failing to attend the summary hearing as follows:

CONSEQUENCES OF FAILING TO ATTEND THE HEARING

If you fail to attend the hearing after receiving proper notice the HRTO may:

• proceed in your absence;

• determine you are not entitled to further notice of the proceedings;

• determine you are not entitled to present evidence or make submissions to the HRTO;

• decide the Application based solely on the materials before the HRTO;

• dismiss the Application as abandoned if the applicant fails to attend, and;

• take any other action the HRTO considers appropriate.

33As set out above, I am satisfied that the applicant had timely and proper notice of the summary hearing. In the absence of the applicant or any reasonable explanation for his failure to attend the summary hearing on April 20, 2012, the Application as against CUPE is deemed to have been abandoned by the applicant and is dismissed accordingly.

34The Application as against CUPE is dismissed.