Dunk v. 2050539 Ontario Inc., 2013 HRTO 186

Human Rights Tribunal of Ontario

B E T W E E N:

Jennifer Dunk

Applicant

-and-

2050539 Ontario Inc. o/a Dollar Haven and Discount

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: February 1, 2013

Citation: 2013 HRTO 186

Indexed as: Dunk v. 2050539 Ontario Inc.

1On April 29, 2011, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, and on September 21, 2011, the respondent filed a Response.

2On April 17, 2012, the parties attended a mediation at the Tribunal, which did not result in a settlement of the case.

3On June 8, 2012, the Tribunal issued a Notice of Confirmation of Hearing to the parties, which informed them that the hearing is scheduled for February 4, 2013, at a hearing room in London.

4The Notice set out the Tribunal’s Rules of Procedure with respect to disclosure of documents and witnesses. Rule 16 requires each party to deliver to every other party and file with the Tribunal a list and copy of all documents that it intends to rely on no later than 45 days prior to the first scheduled day of hearing. Rule 17 requires each party to deliver to every other party and file with the Tribunal a witness list and brief statement summarizing the expected evidence of each witness no later than 45 days prior to the first scheduled day of hearing.

5In accordance with the Notice and Rules 16 and 17, the parties were required to disclose to each other and file with the Tribunal all the documents that they intend to rely on, a witness list and witness statements by no later than December 21, 2012. Neither party complied with Rules 16 and 17.

6In the Tribunal’s experience, a large number of parties who fail to comply with their pre-hearing obligations do not attend hearings. See Lukusa v. Toronto Police Service, 2012 HRTO 2054 at para. 5. The Tribunal has a duty to dispose of applications fairly, justly and expeditiously. See section 40 of the Code and Rule 1.1 of the Tribunal’s Rules of Procedure. This duty is not only in relation to the parties, but also to the public, whose tax dollars fund the Tribunal. In Ouwroulis v. New Locomotion, 2009 HRTO 335, the Tribunal stated 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.

7Accordingly, on January 29, 2013, the Tribunal issued a Case Assessment Direction (“CAD”) to the parties, which stated the following at para. 7:

The parties are directed to comply with Rules 16 and 17, and confirm with the Tribunal that they will be attending the hearing by no later than 5:00 PM on Thursday, January 31, 2013. If the applicant fails to confirm that she will be attending the hearing, her Application may be dismissed as abandoned and the hearing may be cancelled.

8The deadline has passed and neither party has responded to the Tribunal’s CAD, or otherwise contacted the Tribunal.

9In the circumstances, the applicant is deemed to have abandoned the Application, and the Application is dismissed. The hearing scheduled for February 4, 2013 is cancelled.