HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kristien Gosselin

Applicant

-and-

Aboriginal Legal Services of Toronto Inc.

Respondent

DECISION

Adjudicator: Jo-Anne Pickel

Date: August 14, 2013

Citation: 2013 HRTO 1396

Indexed as: Gosselin v. Aboriginal Legal Services of Toronto Inc.

Introduction

[1] The applicant filed an Application alleging that the respondent discriminated against him with respect to employment and services because of his race, colour, ancestry, place of origin, citizenship and ethnic origin. He also alleged that the respondent reprised against him contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

1By Case Assessment Direction (“CAD”) dated April 5, 2013, the Tribunal ordered a summary hearing by teleconference to address the respondent’s request that the Application be dismissed as having no reasonable prospect of success.

2On April 19, 2013, the Tribunal issued a Notice of Confirmation of Hearing (“Notice”) to the parties confirming that a hearing of the Application was scheduled to take place by teleconference on July 18, 2013 at 9:30 a.m.. The Notice specifically advised the parties of the potential repercussions if they failed to attend the hearing. In particular, the Notice advised that the Tribunal might dismiss the Application as abandoned if the applicant failed to attend.

3There is no question that the applicant received the Tribunal’s Notice as he was in e-mail communication with the Tribunal regarding the hearing in the days preceding the hearing. On July 10, 2013, the applicant sent an e-mail to the Tribunal stating:

Please note the following: I have a police incident report in relation to documents that were prepared on time for this matter that were destroyed by another party in the rain.

4The applicant included a police incident report number and attached a photo which showed various documents strewn on the ground. The applicant ended the e-mail by stating “I could not make the deadline as a result and am requesting an extension.” From this statement, it was unclear whether the applicant was requesting an extension to file certain documents to be considered in the hearing.

5On July 15, 2013, the Tribunal acknowledged receipt of the applicant’s e-mail and advised him that he was not required to produce the police report for the purposes of the summary hearing. The Tribunal advised that the summary hearing would proceed as scheduled.

6The same day, the applicant e-mailed the Tribunal stating

This was my evidence? It was prepared and destroyed I was asking for an extension to submit that? I would say that my evidence being destroyed by a third party is relevant.

7From this e-mail it became apparent that the applicant was requesting an adjournment of the summary hearing. By e-mail dated July 16, 2013, the Tribunal advised the applicant that his request for an extension/adjournment would be dealt with at the outset of the summary hearing scheduled two days later. The Tribunal also advised the applicant that he should be prepared to proceed with the hearing in the event that the Tribunal denied his request for an adjournment. The Tribunal received no further communication from the applicant prior to the hearing.

8The hearing was convened by teleconference on July 18, 2013 at the scheduled time. Counsel for the respondent and a representative of the respondent called into the teleconference but the applicant did not. In accordance with its usual practice, the Tribunal waited until 10 a.m. before proceeding.

9At 10 a.m. the applicant still had not called in to the hearing, nor did he communicate with the Tribunal to advise that he was unable to take part. In addition, counsel for the respondent attempted to contact the applicant three times on his cell phone. According to respondent’s counsel, in two of these attempts, the phone rang a number of times before transmitting a busy signal. On his second attempt the respondent’s counsel did manage to leave a voicemail for the applicant providing him both with his office telephone number and the telephone number for the summary hearing.

10At 10 a.m., I sought submissions from the respondent on the appropriate course of action. The respondent’s counsel submitted that it would be appropriate for the Tribunal to direct the applicant to provide an explanation for his failure to participate in the summary hearing. According to the respondent’s counsel, the Tribunal should then determine whether the explanation justified a rescheduling of the summary hearing.

11The Tribunal’s general practice in cases where an applicant fails to attend a hearing is to dismiss the Application as abandoned. However, due to the respondent’s submissions, I issued a CAD on July 19, 2011 directing the applicant to provide an explanation for his failure to attend the summary hearing within 7 days.

12On July 26, 2013, the applicant e-mailed the Tribunal to provide the reasons why he failed to attend the summary hearing. He repeated some of the reasons for why he had sought an adjournment of the summary hearing. He stated that he had been robbed, assaulted, and that all of his paperwork was left outside including the evidence relating to his Application which was damaged and destroyed. In his e-mail, the applicant also indicated that he had cellulitis which is a skin infection. The applicant stated that he had attempted to indicate these reasons to the Tribunal prior to the hearing but that his request was “not taken seriously”.

13The respondent takes the position that the Application should be dismissed on the basis that the applicant has not provided a sufficient explanation for his failure to attend the summary hearing. The respondent submits that the robbery and damage to the applicant’s paperwork occurred over a week prior to the scheduled hearing. The respondent notes that the applicant referred to these events in his July 10, 2013 e-mail and that the Tribunal advised that his adjournment request would be dealt with at the summary hearing. According to the respondent, the alleged robbery and damage to paperwork which occurred at least a week earlier are not a sufficient explanation for failing to attend the hearing as required.

14The respondent also submits that the applicant’s skin infection is not a sufficient reason for failing to participate in the hearing. The respondent notes that the applicant has provided no documentation or details to substantiate his medical condition or to explain why it was severe enough to prevent his attendance at a hearing over the telephone.

15On July 30, 2013, the applicant availed himself of the opportunity to reply to the respondent’s submissions. He e-mailed the Tribunal to advise that he considered the respondent’s submissions to be rude and lacking in compassion. He stated that he would “not attend a hearing without duly sufficient capacity to state my claim”. However, he did not provide any further explanation regarding his cellulitis or any further reason why he was incapable of attending the summary hearing.

FINDINGS

16I have a great deal of sympathy for the difficult circumstances faced by the applicant. However, having carefully considered the matter, I find that the applicant has not provided a reasonable explanation for his failure to take part in the summary hearing. As noted above, it is the Tribunal’s general practice to dismiss applications in cases where an applicant fails to attend a summary hearing, subject to the applicant’s right to seek reconsideration of the Tribunal’s decision. In this case, the Tribunal provided the applicant with an opportunity to provide a sufficient explanation for his failure to attend the hearing. I find that the applicant has failed to do so.

17The applicant has provided two main explanations for failing to attend the hearing: the fact that certain documents he intended to rely upon in the hearing were destroyed and his cellulitis.

18On the issue of the applicant’s cellulitis, I find that this condition is not a sufficient reason to justify his failure to take part in the hearing in the circumstances of this case. The applicant has not provided medical confirmation regarding this condition or any explanation as to why it was serious enough to render him incapable of participating in the telephone hearing. Also, the fact that the applicant had not raised this condition in his request for an adjournment made two days prior to the hearing raises doubts as to whether the condition was in fact so serious as to rendered him incapable of taking part in the hearing. Finally, in his e-mail reply of July 30, 2013, he provided no further explanation as to why the condition was so serious as to render him incapable of taking part in a teleconference hearing.

19In light of the applicant’s two most recent e-mails, it appears that the applicant’s main reason for not attending the hearing was that he did not feel capable of proceeding due to the destruction of certain documents he believed to be relevant to the proceedings. This is the reason he cited for requesting an adjournment in the days leading up to the hearing. Despite being advised that his request for an adjournment would be dealt with at the outset of the hearing, the applicant chose not to attend. If the applicant believed that the circumstances warranted an adjournment of the hearing, he had an obligation to attend the hearing and make submissions on that issue. If the circumstances warranted an adjournment, the Tribunal would have granted the applicant’s request and rescheduled the hearing. Instead, the applicant chose not to attend the summary hearing on the mistaken assumption that his adjournment request was “not taken seriously” because it was not immediately granted.

20A proceeding before this Tribunal is a serious legal proceeding which entails obligations on all parties. One the most basic obligations assumed by a party is to attend a scheduled hearing. One of the reasons for this is that the other party will have expended considerable time and resources to prepare for, and to attend, the hearing on the scheduled hearing day. The Tribunal itself will also have expended resources to schedule the hearing and assign an adjudicator. These resources are wasted when parties fail to attend hearings, with the further consequence that there is a delay in other applications being heard by the Tribunal.

21While parties have the right to request adjournments of hearings, they must comply with the process directed by the Tribunal to consider these requests. They cannot unilaterally disregard this process and the Tribunal’s directions in the hope that a different process may be directed.

22In the case at the hand, the applicant was advised that his adjournment request would be considered at the outset of the hearing. The applicant failed to participate in the summary hearing and has failed to provide a valid reason why he was incapable of doing so. In these circumstances, I find that the Application must be dismissed.

ORDER

23For the reasons set out above, the Application is dismissed.

Dated at Toronto, this 14^th day of August, 2013.