James v. Bohbot, 2013 HRTO 1592

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nerissa G. James

Applicant

-and-

Yoav Bohbot

Respondent

-and-

SEIU, Local 1 Canada

Intervenor

INTERIM DECISION

Adjudicator: Catherine Bickley

Decision Date: September 23, 2013

Citation: 2013 HRTO 1592

Indexed as: James v. Bohbot

APPEARANCES

Nerissa G. James, Applicant

Harry Kopyto, Representative

Yoav Bohbot, Respondent

Erin Porter, Counsel

SEIU, Local 1 Canada, Intervenor

Denis Ellickson, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of race, colour and reprisal.

2The applicant and her representative failed to attend a conference call which had been scheduled to hear the respondent’s request to dismiss the application on the basis that the applicant had failed to make out a prima facie case of discrimination. The applicant’s representative wrote to the Tribunal later the same day offering reasons for the non-attendance. The respondent seeks to have the application dismissed on the basis that it has been abandoned.

procedural history

3The first day of hearing was February 24, 2012. At the end of the applicant’s evidence in chief, the respondent made a Request for an Order During Proceedings (“RFOP”) dismissing the application on the basis that the applicant had not made out a prima facie case of discrimination.

4The applicant, respondent and intervenor agreed that the RFOP would be dealt with during a half-day conference call starting at 1 p.m. on May 14, 2012. I directed the parties to serve on one another and file with the Tribunal in advance of the conference call any authorities on which they intended to rely. I also requested that the parties address the Tribunal’s analysis in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777.

5On February 29, 2012, the Tribunal mailed to the parties a Notice of Conference Call, confirming the date and time of the conference call and providing the parties with the information necessary to connect to the conference call.

6On May 14, 2012, counsel for the respondent and the intervenor both attended on the conference call. Neither the applicant nor her representative attended on the conference call at any time between 1 p.m. and 1:30 p.m.

7At 1:30 p.m., I asked for submissions from the respondent and the intervenor regarding the applicant’s and her representative’s non-attendance on the conference call.

8The respondent argued that the application should be dismissed as abandoned, noting that the conference call timing had been agreed upon by all parties and that the participating parties had put time, effort and expense into preparing for the conference call.

9The intervenor supported the respondent’s submissions.

10At 3:16 p.m. that same day, the Tribunal received a letter via facsimile from the applicant’s representative, stating:

Please note that I installed new phones in my office this morning and was unable to reach your office for the scheduled motion of the Respondent. Please note that when I got through to the Respondent, she indicated that no effort was made to contact me and that she brought a motion to have the matter dismissed as abandoned.

Please do not do so. Technical problems resulted in my non-participation. I prepared extensively for the motion. For technical reasons, I was unable to connect. I am ready to participate on the most minimal notice. It would be a miscarriage of justice to abandon the application after my meeting my client on May 12, 2012 to prepare for it and fully hoping to do so with numerous hours spent preparing submissions on the facts and law.

11In response to this letter, the respondent submitted that the applicant’s representative could have participated in the conference call by cellphone, contacted the Tribunal by facsimile or e-mail to inform it that he was having technical difficulties or scheduled either the installation of the new telephone system or the conference call at a time when they would not conflict with one another. The respondent also noted that the applicant had not filed any materials with the Tribunal in advance of the conference call.

analysis and decision

12The issue to be decided is whether, in these circumstances, the applicant should be considered to have abandoned her application.

13It is clear that the applicant and her representative received notice of the conference call. Indeed, both were present at the time the conference call was scheduled and consented to the time and date of the conference call.

14I agree with the respondent that the applicant’s representative should have anticipated the possibility of problems with the installation of the new telephone system and taken steps to ensure that he could either participate in the conference call or advise the Tribunal of his difficulties in doing so. However, I do not agree that the applicant’s representative’s lack of foresight with regard to the potential communication challenges associated with the installation of the new telephone system requires that this application be dismissed.

15The situation in this case bears some similarities to that in Cushnie v. Toronto Police Services Board, 2013 HRTO 63. In Cushnie, a number of applications to the Tribunal had been deferred pending the conclusion of ongoing Special Investigation Unit and Office of the Independent Police Review Director proceedings and a criminal proceeding involving one of the applicants. After writing to the applicants asking for a status update on those proceedings and receiving no reply, the Tribunal dismissed the applications as abandoned. Subsequently, the Tribunal received a request for reconsideration and was advised of circumstances which had led counsel for the applicant to miss the deadline for responding to the Tribunal’s inquiry as to the status of the investigations. The Tribunal concluded:

It would be neither fair nor just to deprive the applicants of their ability to proceed with these matters solely on the basis of their counsel’s inadvertence.

16Unlike Adeoye v. Regional Municipality of Peel Police Services Board, 2013 HRTO 235, in this case there was no oral ruling dismissing the application before the applicant contacted the Tribunal to offer a reason for missing a conference call. Although the respondent and intervenor made submissions on the conference call arguing that the application should be dismissed as abandoned, no ruling was made at that time.

17It is clear from the letter of May 14, 2012 that the applicant does not intend to abandon her application and wishes to proceed.

18This is not a case where an applicant has been unresponsive to the Tribunal’s directions over a lengthy period. The applicant’s representative contacted the Tribunal two hours and sixteen minutes after the scheduled start of the conference call (prior to the time at which the conference call was scheduled to conclude), offering an explanation for his non-attendance on the conference call and urging that the application not be dismissed as abandoned.

19I conclude that in these circumstances, it would be neither fair nor just to dismiss this application.

20Accordingly, the respondent’s request to dismiss the application is denied.

21I apologize to the parties for the time it has taken to issue this decision.

direction

22The Registrar is directed to schedule a half-day hearing by way of conference call at the earliest date possible.

23The applicant’s representative is directed to file any authorities on which he intends to rely within 14 days of the date of this decision, failing which the Tribunal may dismiss this application as abandoned. Should the respondents wish to file any additional authorities upon receiving the applicant’s authorities, they may do so within 7 days of receipt of those authorities.

24The applicant’s representative is directed to ensure that he has access to a working telephone in order to connect with the conference call without issue.

25The parties are reminded that they will be expected to address the Tribunal’s analysis in Pellerin, above.