Susie Kaston v. Bad Boy Furniture Warehouse Ltd., 2012 HRTO 887

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susie Kaston

Applicant

-and-

Bad Boy Furniture Warehouse Ltd.

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: May 4, 2012

Citation: 2012 HRTO 887

Indexed as: Kaston v. Bad Boy Furniture Warehouse

1The applicant, who worked as a sales associate in a Bad Boy Furniture store, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 3, 2011 which alleged that the respondent discriminated against her with respect to employment because of her race and place of origin, and subjected her to sexual advances.

2In her Application, the applicant made the following statements with respect to the alleged sexual advances:

One manager was making sexual advances towards me which made me very uncomfortable and upset. This got progressively worse. When I avoided that manager, I was fired from the company under the reason that I had no sales….

The applicant did not provide any further details.

3The respondent filed a Response on August 18, 2011 which denied the allegations of discrimination and sexual advances. The respondent stated that that it terminated the applicant’s employment solely because she had the worst sales record of any employee in the store. With respect to the allegations of sexual advances, the respondent stated: “

The Applicant has provided no particulars as to who allegedly engaged in the sexual solicitation, the nature of the sexual solicitation, nor the dates of the alleged sexual solicitations and therefore it is impossible for Bad Boy to investigate this allegation.

4On December 29, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) which provided the following direction to the applicant:

(…) Rule 6.2 [of the Tribunal’s Rules of Procedure] reads as follows:

A complete Application must provide the information requested in every section of the Application form and the related supplemental form(s) and Form 4 (if applicable), and must set out all the facts that form the substance of the allegations of discrimination including the circumstances of what happened, where and when it happened, and the names of person(s) or organization(s) alleged to have violated the Applicant’s rights under the Code.

The applicant must provide full details of her allegations of sexual advances, including the name of the manager, the circumstances in which she alleges they happened, and the details of exactly what she says happened.

The Tribunal directs that by January 13, 2012, the applicant deliver to counsel for the respondent and file with the Tribunal a letter setting out the details of her allegations of sexual advances, or indicating that she is withdrawing this allegation. If the applicant fails to comply with this direction, the Application may be dismissed as abandoned.

5On January 11, 2012, the applicant provided some details about the circumstances of what happened, but, contrary to the direction above, did not provide the name of the manager or the approximate date and time when the alleged incidents occurred.

6On February 22, 2012, the Tribunal issued a further CAD which stated:

[W]ithin one week of the date of this CAD, the applicant shall deliver to the respondent’s new counsel… and file with the Tribunal a letter or e-mail with the missing information….

If the applicant fails to comply with this direction, the Application may be dismissed as abandoned.

7To date, the applicant has not provided the missing information or otherwise communicated with the Tribunal. 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. 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 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.

8In my view, it would be unfair to the respondent and a waste of the Tribunal’s resources to allow the Application to continue when the applicant failed to provide sufficient details to allow the respondent to respond to some of her key allegations, failed to follow the Tribunal’s direction to provide sufficient details, and then totally ignored the Tribunal’s subsequent direction to provide the details.

9In the circumstances, the applicant is deemed to have abandoned the Application, and the Application is dismissed.