Stewart v. Ontario (Children and Youth Services), 2012 HRTO 509

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Juno Stewart Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services Respondents

Ontario Public Service Employees Union Intervenor

decision

Adjudicator: Maureen Doyle Date: March 12, 2012 Citation: 2012 HRTO 509 Indexed as: Stewart v. Ontario (Children and Youth Services)

Appearances

Juno Stewart, Applicant ) No one appearing

Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services, Respondent ) George Parris, Counsel

Ontario Public Service Employees Union, Respondent ) Eric O’Brien, Counsel

INTRODUCTION

1This in an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). These Applications were dismissed as abandoned at a Summary Hearing on March 9, 2012 with reasons to follow. Below are the reasons for dismissal.

BACKGROUND

2In a Case Assessment Direction (“CAD”) dated July 6, 2011, the Tribunal directed that a Summary Hearing be scheduled in this matter, and that the issue would be whether there was a reasonable prospect that the Tribunal would find a violation of the Code in the circumstances, given the allegations and the submissions made in the Responses of the respondent employer and the respondent union. The CAD directed that a half-day hearing by teleconference would be scheduled and that if the Tribunal were to find that the Application had no reasonable prospect of success, it would be dismissed.

3A Notice of Summary Hearing was sent to the parties on October 25, 2011, indicating that December 9, 2011 had been set as the date for the summary hearing.

4The union requested an adjournment of the December 9, 2011 date and the respondent employer did not object. No submissions were received from the applicant. The December 9, 2011 hearing date was adjourned in an Interim Decision in this matter, Stewart v. Ontario (Children and Youth Services) 2011 HRTO 2218 (“Stewart”).

5The parties exchanged several e-mails regarding availability, and copied the Tribunal on those e-mails. On January 5, 2012, counsel for the union sent an e-mail to the applicant and to counsel for the respondent employer, suggesting several dates. Both responded via e-mail, advising that they had March 9, 2012 available for the Summary Hearing. The applicant’s response to union counsel was sent January 12, 2012.

6On January 13, 2012, the Tribunal sent a Notice of Summary Hearing to the parties advising that a hearing by teleconference was scheduled for March 9, 2012, commencing at 1:30 pm and providing the call-in information needed by the parties to participate in the call. On July 21, 2011, the applicant had requested that the Tribunal correspond with him via e-mail. The Notice was sent by the Tribunal to the applicant at the most recent e-mail address the Tribunal had for him, being the same address he used to write to counsel for the union respondent on January 12, 2012. There was no indication that the e-mail was undeliverable.

7The Notice of Summary Hearing also indicated the consequences of failing to attend the hearing as follows:

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

8On March 9, 2012, the applicant did not call and was not present at the Summary Hearing. In accordance with its usual practice, the Tribunal waited thirty minutes until 2:00 p.m. At 2:00 p.m., the applicant was still not in attendance.

9The respondents’ counsel made submissions at that time, confirming the positions they had taken in their Responses and denying any discrimination. They also submitted that the Application should be dismissed as abandoned in light of the fact that the applicant did not attend the Summary Hearing.

DECISION

10In Ouwroulis v. New Locomotion, 2009 HRTO 335 the Tribunal discussed an applicant’s responsibilities when bringing a human rights application at paragraphs 4-7 as follows:

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.

11The respondents have spent time, money and resources in responding to this Application and in attending a hearing where the applicant failed to appear. The Tribunal has also expended significant resources in processing this Application and in organizing the hearing date set for March 9, 2012.

12A Tribunal Application is a legal proceeding commenced by the applicant. It is the applicant’s responsibility to attend the hearing. In the absence of the applicant, there is no onus or responsibility on the respondents to provide evidence in response to allegations where the applicant has failed to appear at the hearing.

13I am satisfied that the applicant had notice of the Summary Hearing. In view of the applicant’s failure to attend the Summary Hearing, this Application is dismissed as abandoned.