Cooper v. McKenna, 2013 HRTO 1122

Human Rights Tribunal of Ontario

B E T W E E N:

James Cooper

Applicant

-and-

Angela McKenna

Respondent

AND B E T W E E N:

Angela McKenna

Applicant

-and-

James Cooper

Respondent

DECISION

Adjudicator: Mark Hart Date: June 25, 2013 Citation: 2013 HRTO 1122 Indexed as: Cooper v. McKenna

1These are two Applications filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") as between the same parties. In the first Application dated August 2, 2012 (2012-12167-I), Mr. Cooper alleges as against Ms. McKenna that he experienced discrimination with respect to employment because of race, colour, place of origin, ethnic origin, sex and sexual solicitation. In the second Application (2013-13784-S), Ms. McKenna alleges that Mr. Cooper violated the terms of a settlement by filing the former Application, as he had signed a release in Ms. McKenna's favour.

2This Decision dismisses Application 2012-12167-I as having been abandoned by Mr. Cooper, and seeks confirmation from Ms. McKenna as to whether she intends to proceed with Application 2013-13784-S in light of this Decision and, if so, on what basis.

Mr. Cooper's Application

3Ms. McKenna filed a Response to Mr. Cooper's Application dated September 10, 2012 requesting that the Application be dismissed on the basis that Mr. Cooper had signed a full and final release with respect to the subject matter of the Application and that to proceed with hearing the Application would amount to an abuse of process.

4By letter dated January 8, 2013, the Tribunal scheduled a teleconference hearing to address Ms. McKenna's request to dismiss the Application, which was scheduled for March 15, 2013 at 1:30 p.m.

5On March 15, 2013 at 11:05 a.m., Mr. Cooper sent e-mail correspondence to the Tribunal requesting that the teleconference hearing be re-scheduled on the basis that he had been released from hospital on March 13, 2013 following an operation on his leg and he was continuing to experience pain.

6In response, the parties were advised by the Tribunal that the already scheduled teleconference hearing would proceed as scheduled, and Mr. Cooper's request for re-scheduling of the teleconference hearing would be addressed at that time.

7At the teleconference hearing, Mr. Cooper advised that he was experiencing significant pain, was in bed at a friend's house, and did not have access to any of his materials. Ms. McKenna's counsel opposed the adjournment on the basis that this matter had been outstanding for some time and her client was entitled to have the issue determined.

8I allowed Mr. Cooper's request for re-scheduling, on the basis of his current medical condition. I canvassed with Mr. Cooper when he believed that he would be in a position to prepare for and participate in a teleconference hearing on the above-stated issue, and he agreed that he could do this in two weeks. I canvassed available dates with the parties, and all parties were available for the teleconference hearing to proceed on April 3, 2013 at 1:30 p.m.

9Accordingly, I adjourned the teleconference hearing to April 3, 2013 at 1:30 p.m. All of this was confirmed with the parties in a Case Assessment Direction dated March 20, 2013.

10On April 2, 2013, Mr. Cooper advised that he had just been re-admitted to hospital for medical care, and so would not be available to attend the teleconference hearing scheduled for the following day. As a result, the parties were notified that the teleconference hearing would not proceed on April 3, 2013 as scheduled.

11On April 2, 2013, the Tribunal wrote to the parties to confirm the cancellation of the April 3, 2013 hearing and also to propose several alternate dates for the hearing in May and June 2013. The parties were asked to consult with each other to select an agreeable date.

12On April 10, 2013, counsel for Ms. McKenna wrote to Mr. Cooper to propose a number of potential hearing dates upon which Ms. McKenna and her counsel were available and requested Mr. Cooper's earliest response. When no response had been received by April 15, 2013, counsel for Ms. McKenna wrote to the Tribunal to request that the hearing be scheduled on one of the dates when she and her client were available.

13On April 22, 2013, the Tribunal contacted Mr. Cooper by telephone to inquire as to his availability for the hearing. Mr. Cooper stated that he was very sick with a grave medical condition, and was not able to reply to the request for hearing dates or communicate with the Tribunal. Mr. Cooper further stated that he was unsure when he would be well enough to re-schedule the hearing. Mr. Cooper was requested to provide this information in writing. He did not do so.

14Having heard nothing further from Mr. Cooper for over a month, the Tribunal wrote to the parties by letter dated May 30, 2013 to confirm that Mr. Cooper had been contacted on April 22, 2013 by telephone, had been asked to confirm in writing that he was ill and unable to re-schedule the hearing, and had not done so. Mr. Cooper was advised that at this stage, the Tribunal required communication from him with respect to his intentions for his Application.

15By this letter, Mr. Cooper was asked to write to the Registrar with a copy to Ms. McKenna's representative, to provide an update on his health status and his ability to participate in the teleconference hearing. If he still was unable to proceed with the Application, Mr. Cooper was asked to provide medical documentation in support of his request to delay the re-scheduling of the teleconference hearing. Mr. Cooper was directed to respond to this letter by no later than June 14, 2013. He was advised that, if the Tribunal did not receive a response by then, his Application may be dismissed as abandoned.

16It is now ten days past the deadline set out in the Tribunal's letter, and no communication from Mr. Cooper has been received.

17Accordingly, Application 2012-12167-I is dismissed as abandoned.

Ms. McKenna's Application

18A breach of settlement Application was filed on behalf of Ms. McKenna on February 28, 2013. The subject matter of the breach of settlement Application relates to the Application filed by Mr. Cooper against Ms. McKenna.

19By Case Assessment Direction dated March 25, 2013, I consolidated these two Applications and advised that they would be heard together at the teleconference hearing on April 3, 2013.

20I noted that the breach of settlement Application largely raises arguments about why Application 2012-12617-I should be dismissed on the basis of the release signed by Mr. Cooper. I expressed my view that, to this extent, the breach of settlement Application is unnecessary and duplicitous, as these arguments already were raised by Ms. McKenna in her Response to Application 2012-12617-I. I advised that, to the extent that what is being sought in the breach of settlement Application is simply the dismissal of Application 2012-12617-I, this is a matter that already had been set down to be addressed at the teleconference hearing and no additional breach of settlement Application need be filed.

21I further noted that, apart from seeking dismissal of Application 2012-12617-I, the breach of settlement Application also requests legal costs from Mr. Cooper for responding to Application 2012-12617-I. I noted that this Tribunal repeatedly has held that it does not have jurisdiction to award legal costs: see for example XY v. Ontario (Government and Consumer Services), 2012 HRTO 726 at para. 284.

22In these circumstances, I directed that the teleconference hearing also would address the issue of whether the breach of settlement Application should be dismissed as duplicitous and/or whether Ms. McKenna has a reasonable prospect of success of maintaining her claim for costs as advanced in the breach of settlement Application.

23Mr. Cooper's Application now has been dismissed as abandoned. If Ms. McKenna still intends to proceed with her breach of settlement Application, she is directed to so advise the Tribunal and Mr. Cooper in writing within 14 calendar days, together with written submissions as to the basis upon which she asserts that her Application can proceed. If nothing is received from Ms. McKenna within this time period, her Application will be dismissed as abandoned.

ORDER

24For all of the foregoing reasons, I hereby make the following order:

a. Application 2012-12167-I is dismissed as abandoned; and

b. Within 14 calendar days of the date of this Decision, Ms. McKenna shall advise the Tribunal and Mr. Cooper in writing whether she still intends to proceed with Application 2013-13784-S, together with written submissions as to the basis upon which she asserts that her Application can proceed. If nothing is received from Ms. McKenna within this time period, her Application will be dismissed as abandoned.