HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nana Kyeame
Applicant
-and-
Massiv Die-Form, a division of the Magna Technology and Tooling Systems Group of Magna International Inc.
Respondent
RECONSIDERATION DECISION
Adjudicator: Sheri D. Price
Indexed as: Kyeame v. Massiv Die-Form
wRITTEN SUBMISSIONS BY
Nana Kyeame, applicant ) Self-represented
Massiv Die-Form, a division of the Magna ) Technology and Tooling Systems Group ) Eric Gresham, Counsel of Magna International Inc., Respondent )
INTRODUCTION
1This is a Request for Reconsideration filed pursuant to s. 45.7(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant seeks reconsideration of the Tribunal’s February 15, 2013 Decision, 2013 HRTO 267, dismissing his Application as abandoned. The Application was dismissed as abandoned, shortly before the scheduled hearing date of February 25, 2013, because the applicant failed to comply with the Tribunal’s Rules regarding pre-hearing disclosure; failed to respond to a January 18, 2013 Case Assessment Direction (“CAD”) alerting him of his obligation to do so and warning him that a failure to take action within seven days could result in the dismissal of the Application; and failed to respond to the respondent’s January 28, 2013 letter requesting that the Application be dismissed in light of the applicant’s failure to respond to or comply with the Tribunal’s CAD.
2Rule 26.5 of the Tribunal’s Rules of Procedure states that reconsideration will not be granted unless the Tribunal is satisfied that:
a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or
b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or
c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or
d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
3The applicant submits that the reason he did not comply with the directions in the Tribunal’s January 18, 2013 CAD was because he “did not have anything else to add to what [he] had already presented” and “never knew [he] had to respond to it before trial”. The applicant requests reconsideration of the Tribunal’s decision dismissing his Application pursuant to Rule 26.5(a) and (b), above.
BACKGROUND
4A hearing in this matter had been scheduled for February 25, 2013.
5Pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure, no later than 45 days prior to the hearing, the parties were required to exchange with one another and to file with the Tribunal a list of their witnesses, a summary of their evidence, and a copy of the documents intended to be relied upon. These requirements were also clearly set out in the Notice of Hearing sent to the parties on July 31, 2012 (and resent to the applicant, at his request, on January 4, 2013), as follows:
Unless otherwise directed by the HRTO, not later than January 11, 2013, you must deliver to every other party and file with the HRTO:
a list of all documents you intend to rely on at the hearing;
a copy of each document on that list for the HRTO;
a copy of every document on that list for each party or confirmation every document has already been provided to the other parties;
a witness list that includes the name of every witness, including expert witnesses, you intend to present to the HRTO;
a statement summarizing the expected evidence of each witness;
where you intend to rely on the evidence of a proposed expert witness, a copy of the expert’s written report or a full summary of the expert’s proposed evidence and the expert’s curriculum vitae;
the Statement of Delivery of the Rule 16.2 list and documents on the other parties
6The respondent delivered its documents, witness list and witness statements to the Tribunal and the applicant on or about January 8, 2013. However, the applicant did not comply with the Tribunal’s requirements regarding pre-hearing disclosure.
7In the Tribunal’s experience, parties who fail to comply with their pre-hearing obligations often do not attend hearings. See Lukusa v. Toronto Police Service, 2012 HRTO 2054 at para. 5; Milkovic v. Lowe's Companies Canada, ULC, 2013 HRTO 255.
8Accordingly, when one or both parties do not comply with their obligations, the Tribunal generally issues a CAD directing them to do so within seven days. Typically, the CAD states that a failure by the applicant to file required materials within this time may result in the dismissal of the Application, and/or that a failure by the respondent to file required materials may result in the Tribunal taking any or all of the steps in Rule 5, including not permitting the respondent to call evidence at the hearing. The CAD also sets out the importance of witness statements in the Tribunal process, and states that an applicant or individual respondent who intends to be the only witness and testify only to what is set out in the Application or Response need simply send a letter confirming this.
9That is what occurred in this case.
10In a CAD dated January 18, 2013, the Tribunal alerted the applicant to his failure to comply with the Tribunal’s Rules regarding the pre-hearing disclosure of documents and witness statements. It warned the applicant that “there [we]re serious consequences for this case if the applicant continue[d] to fail to comply with the Tribunal’s Rules.” (emphasis in original) Specifically, the Tribunal warned the applicant that failure to comply with the Tribunal’s Rules regarding pre-hearing disclosure within seven (7) days of the date of the Case Assessment Direction could result in the Application being dismissed as abandoned. The CAD also stated:
A witness statement should be filed for each witness who may be called to testify, including the applicant herself (sic). However, where the Application itself makes clear the applicant’s proposed testimony, the witness statement may simply confirm that the summary of facts in the Application is complete and reflects the evidence that will be given by the applicant. [emphasis in the original]
11On January 28, 2013, after the applicant’s deadline for complying with the Tribunal’s CAD had passed, the respondent wrote to the Tribunal asking that the Application be dismissed on the basis of the applicant’s ongoing failure or refusal to comply with the Tribunal’s Rules and its January 2013 Case Assessment Direction. The applicant was copied on the letter. However, he did not respond to it. Nor did he comply with the directions in the Tribunal’s CAD or contact the Tribunal in any way.
12Accordingly, the Tribunal dismissed the Application as abandoned on February 15, 2013: 2013 HRTO 267.
13On February 19, 2013, the applicant telephoned the Tribunal indicating that he had questions regarding his hearing date. The applicant was advised that his Application had been dismissed as abandoned and the February 25, 2013 hearing cancelled, because of his failure to comply with the CAD. The applicant stated that he did not have any documents and he still wanted his hearing. He was advised of his right to file a Request for Reconsideration, which he did on March 18, 2013.
ANALYSIS AND DECISION
14The Request for Reconsideration is dismissed.
15As the Tribunal stated in Ouwroulis v. New Locomotion, 2009 HRTO 335 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. [emphasis added]
16The applicant did not comply with the obligations set out in the Notice of Hearing. He also took no action following the CAD, which clearly alerted him that a failure to do so could result in the dismissal of his Application. The applicant suggests that he did not respond to the CAD because he did not have any documents to file. However, the CAD made it clear that, at a minimum, the applicant needed to confirm that he intended to testify to what was set out in the Application and that there was nothing else he intended to rely upon. If the CAD was unclear, the applicant ought to have contacted the Tribunal within the seven (7) day deadline to inquire about what was required of him. While the applicant is self-represented, and entitled to some latitude, there is no reason that he could not have communicated with the Tribunal or taken steps to comply with his obligations upon receiving the Notice of Confirmation of Hearing and/or the CAD. The applicant’s failure to respond to the respondent’s January 28, 2013 letter asking that the Application be dismissed in light of the applicant’s non-compliance only compounded the situation.
17Reconsideration is only granted in exceptional circumstances: see Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14. In this case, the applicant has not identified any new facts or evidence that could be determinative of the case and that could not reasonably have been obtained earlier (Rule 26.5(a)). Nor has he established that he did not receive notice of the February 25, 2013 hearing (Rule 26.5(b)). Indeed, the applicant acknowledges that he was aware of the February 25, 2013 hearing date. Given the applicant’s failure to comply with his obligations, and failure to heed a clear warning that not doing so could lead to the dismissal of his Application and the resulting cancellation of the hearing, there are no circumstances that outweigh the important interest in the finality of Tribunal decisions. My conclusion in this regard is consistent with the Tribunal’s decisions in Lukusa v. Toronto Police Service, 2012 HRTO 2054; Kosovic v. Karat Jewellers, 2013 HRTO 905; Wadden v. Takhar Collection Services Ltd., 2012 HRTO 2076.
18The Request for Reconsideration is dismissed.
Dated at Toronto, this 5th day of July, 2013.
“Signed by”
Sheri D. Price
Vice-chair