Wilson v. Coalition for Persons with Disabilities-Employment Access, 2013 HRTO 1886

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Wilson

Applicant

-and-

Coalition for Persons with Disabilities-Employment Access, Todd Futher and Keelin Carey

Respondents

DECISION

Adjudicator: Eric Whist

Date: November 13, 2013

Citation: 2013 HRTO 1886

Indexed as: Wilson v. Coalition for Persons with Disabilities- Employment Access

1This is an Application filed on November 23, 2012, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to the provision of services on the basis of disability.

2On December 19, 2012, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) to the applicant indicating that the Application appeared to be outside the Tribunal’s jurisdiction because it was filed more than one year after the last incident of alleged discrimination. On February 8, 2013, the Tribunal received brief submissions from the applicant in response to the NOID.

3In an Interim Decision dated March 8, 2013, 2013 HRTO 455, the Tribunal determined that it was not plain and obvious that the Tribunal did not have jurisdiction and accordingly the applicant’s Application would proceed. The Tribunal directed the respondents to file a Response to the Application.

4The respondents filed a Response on April 16, 2013. The respondents indicated a willingness to participate in mediation. The applicant had indicated a similar interest in the Application.

5On June 17, 2013, the Tribunal sent out a Notice of Mediation to the parties advising that a mediation would be held on September 27, 2013. The Notice of Mediation also indicated that if the parties were unable to attend on the scheduled mediation date they were required to notify the Tribunal’s Registrar within five days of receiving the Notice. No such notification was received from the applicant.

6The respondents attended the mediation on September 27, 2013 and waited with the Tribunal mediator for the applicant to appear. The applicant failed to attend. Given the applicant’s absence, the mediation was cancelled.

7On October 2, 2013, the Tribunal emailed a letter to the applicant. The letter notes the applicant had failed to attend the scheduled mediation. The letter tells the applicant that by October 15, 2013 he has to advise the Tribunal and the respondents in writing whether he intends to proceed with his Application. The letter goes on to state that if the applicant fails to respond to the letter the Tribunal may deem the Application to be abandoned and dismiss the file.

8The letter is sent with a covering email. In the covering email the Tribunal states that the applicant is being sent enclosed correspondence for the applicant’s review and response by October 15, 2013. The email also states that this correspondence is being sent to both of the applicant’s email addresses known to the Tribunal to determine which email is most current. The Tribunal asks the applicant to reply from the email address he would like to have recorded on his file.

9Later on October 2, 2013, the applicant emails the Tribunal from one of the two email address known to the Tribunal to state that he has a new postal mailing address which he provides.

10Still later on October 2, 2013, the Tribunal emails the applicant to thank him for confirming his email address as well as his current mailing address. The email then advises the applicant he must respond to the attached letter by October 15, 2013. The Tribunal again attaches its October 2, 2013 letter regarding the applicant’s failure to attend the mediation and the need for him to indicate whether he intends to proceed.

11The Tribunal has received no further communication from the applicant as of the date of this Decision.

DECISION

12The applicant commenced a legal proceeding when he filed an Application with the Tribunal. It is the applicant’s responsibility to participate in this proceeding by taking the necessary steps to pursue his Application. The applicant failed to appear to a scheduled mediation. In an October 2, 2013 letter the applicant was directed to indicate whether he intended to proceed with his Application by October 15, 2013. He did not. I find that the applicant has abandoned his Application and consequently his Application is dismissed.

13I am mindful that the applicant did respond to the Tribunal’s first October 2, 2013 email and attached letter by providing a new mailing address (and confirming his email address). However, in light of the applicant’s failure to attend the scheduled mediation, and the clear direction from the Tribunal to confirm his intentions in light of that non-attendance, I am unable to conclude that the mere confirmation of contact information was a sufficient indication that the applicant does intend to proceed with the application. In Ouwroulis v. New Locomotion, 2009 HRTO 335, at paras. 4 – 7, the Tribunal discussed the importance of the obligations parties have with respect to participation in an ongoing proceeding:

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.

14Having regard to these principles, I have two concerns. One, while the applicant did confirm his contact information he did not answer the Tribunal’s explicit request for an indication as to whether he wished to proceed with his Application. Two, as importantly, after receiving the applicant’s email in which he provides only a new mailing address the Tribunal emailed the applicant again to tell him that he needed to respond to the Tribunal’s October 2, 2013 letter. It again provided the applicant with a copy of this letter. It provided the applicant with a further opportunity to indicate his intentions. Nonetheless, the applicant did not reply to this further request.

15Given these circumstances the applicant is deemed to have abandoned the Application and the Application is dismissed.