Klumpenhouwer v. Lowe’s Companies Canada, ULC, 2013 HRTO 1425

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kiem Klumpenhouwer Applicant

-and-

Lowe’s Companies Canada, ULC Respondent

DECISION

Adjudicator: Ruth Carey

Date: August 20, 2013

Citation: 2013 HRTO 1425

Indexed as: Klumpenhouwer v. Lowe’s Companies Canada, ULC

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability, race and colour.

2On February 26, 2013, the Tribunal issued an Interim Decision, 2013 HRTO 330, after a summary hearing was held to determine whether or not the Application would be dismissed as having no reasonable prospect of success. The Interim Decision denied the request to dismiss the Application in its entirety, but did dismiss the allegations of discrimination in employment because of race and colour. The Interim Decision also removed a personal respondent.

3During the course of the summary hearing the applicant was afforded the opportunity to make oral submissions as to whether or not the Application should be dismissed as having no reasonable prospect of success. Although the Interim Decision did not dismiss the Application entirely, it did state (at para. 22):

The applicant is reminded that he bears the onus of proving that he has a disability within the meaning of the Code. In the circumstances of this case, and given his representations during the hearing that he will provide medical documentation to establish his disability, the Tribunal would expect that medical documentation and/or medical evidence would be submitted by the applicant and failure to provide this documentation and/or evidence may result in his Application being dismissed. [Emphasis added.]

4The Tribunal then issued the following direction (at para. 28 iii):

The applicant is directed to file copies of his medical documentation with the Tribunal and the respondents at least (10) business days prior to the mediation.

5Mediation was scheduled for July 30, 2013.

6The applicant failed to file and deliver the medical documentation referred to in the Interim Decision. As a result, on July 24, 2013, the Tribunal issued a Case Assessment Direction (“CAD”) reminding the applicant of the requirement to file medical documentation prior to mediation. The CAD directed the applicant to contact the Tribunal and indicate whether or not he was going to attend the mediation. It further stated that if he intended to participate in mediation then he should comply with the Interim Decision by filing with the Tribunal and delivering to the respondent the medical documentation referred to in the Interim Decision no later than July 26, 2013.

7On July 25, 2013, the applicant responded to the CAD saying he planned to attend the mediation on July 30, 2013, but would not be presenting any medical documentation at that time. His e-mail to the Tribunal read as follows:

Yes, I will be attending the hearinbg [sic] on Tuesday, July 30. No, I wiil [sic] not be presenting any medical documentation at this time. The hearing will provide additonal [sic] information necessary for:

a) settlement

b) refile

c) appeal

d) civil case

8On July 25, 2013, the Tribunal issued a second CAD which directed the applicant as follows:

If the applicant does not comply with the Interim Decision and file medical documentation that establishes his disability by the end of the business day (5 p.m.) on July 26, 2013, then the mediation session scheduled for July 30, 2013, shall be cancelled and the Application dismissed.

9The applicant did not file and deliver the medical documentation required. As a result, the Tribunal issued a third CAD dated July 30, 2013, directing the Registrar to notify the parties that the mediation was cancelled. The CAD of July 30, 2013, also stated:

The outstanding issue is whether or not the Application should be dismissed: because the lack of medical evidence establishing the applicant’s disability means there is no reasonable prospect of success; or alternatively, as an abuse of process.

Pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. c. S.22, the Tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. (See: Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667; and Felix v. Global Payments of Canada GP, 2011 HRTO 1983.) Given the applicant’s statement of July 25, 2013, indicating he was refusing to comply with the Interim Decision, and his failure to respond to the CAD issued July 25, 2013, it may be that permitting the Application to proceed would constitute an abuse of process.

10The third CAD included the following Direction:

On or before August 16, 2013, the applicant shall file with the Tribunal and deliver to the respondent written submissions with respect to whether or not the Application should be dismissed: because the lack of medical evidence establishing the applicant’s disability means there is no reasonable prospect of success; or alternatively, as an abuse of process.

11The applicant has not complied with this Direction or corresponded further with the Tribunal.

ANALYSIS

12The summary hearing was held pursuant to Rule 19A of the Tribunal’s Rules of Practice. Although Rule 19A.6 says that where the Tribunal decides not to dismiss an Application following a summary hearing, it need not give reasons, the Tribunal did so in this instance.

13Rule 1.7 says in part:

In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

p) require a party or other person to produce any document, information or thing and to provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form;

t) attach terms or conditions to any order or direction;

14The requirement that the applicant file medical documentation to establish his disability was made pursuant to Rule 1.7 p) and constitutes a term or condition of the Interim Decision denying the request to dismiss the Application for no reasonable prospect of success pursuant to Rule 1.7 t).

15The result of the applicant’s failure to file medical documentation establishing his disability is that there is no evidence that would satisfy the test of reasonable prospect of success and the Application must be dismissed as contemplated by Rule 19A and the Interim Decision.

16Further, I find that to continue with the Application in these circumstances constitutes an abuse of process.

17Pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. c. S.22, as amended, the Tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. In Ouwroulis v. New Locomotion, 2009 HRTO 335, at paras. 4-7, the Tribunal explained why it is appropriate in some circumstances to exercise this power:

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.

18Given the applicant’s persistent refusal to comply with the Interim Decision and his failure to respond to the CADs issued July 25 and 30, 2013, I conclude that the applicant has no intention of complying with the Tribunal’s orders and directions. In circumstances such as these, to permit the Application to continue would constitute an abuse of process.

DECISION

19The Application is dismissed.