Johnson v. Quality Home Services, 2013 HRTO 231

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Errol Johnson

Applicant

-and-

Quality Home Services, Phillip Murray,

and State Farm Mutual Automobile Insurance Company

Respondents

DECISION

Adjudicator: Mark Hart

Date: February 7, 2013

Citation: 2013 HRTO 231

Indexed as: Johnson v. Quality Home Services

1This Decision is written to address the applicant’s continued non-compliance with his disclosure and pre-hearing obligations under the Rules.

2The history of this matter was reviewed at length in this Tribunal’s prior Interim Decision dated September 7, 2012 (2012 HRTO 1698), as follows:

This matter was originally scheduled to be heard on April 11 and 12, 2012. In an Interim Decision dated March 16, 2012, 2012 HRTO 551, the Tribunal granted the applicant’s request that the April 2012 hearing dates be adjourned because of the death of a member of the applicant’s family overseas. On April 3, 2012, the Tribunal issued a new Notice of Confirmation of Hearing, confirming that the Application would be heard on September 11 and 12, 2012.

In a Case Assessment Direction (“CAD”) dated August 15, 2012, the Tribunal noted that the applicant failed to comply with the disclosure and filing requirements required under Rules 16 and 17 of the Tribunal’s Rules of Procedure and set out in the Tribunal’s Notice of Confirmation of Hearing dated April 3, 2012. The Tribunal directed the applicant to immediately file the required materials, and indicated that if the applicant did not do so within 7 days of the date of the CAD, the Application may be dismissed as abandoned.

On August 21, 2012, the Tribunal received email correspondence from the applicant, in response to the Tribunal’s CAD, wherein the applicant indicated that he was still out of the country, but returning to Toronto that day to attempt a proper response to the instructions provided. The Tribunal also received email correspondence from the applicant dated August 22, 2012, wherein he indicated that he was awaiting a letter from his doctor to support his request for a “postponement” due to medical reasons.

In correspondence received by the Tribunal by email on September 5, 2012, and addressed to the other parties, the applicant requested a “postponement” of six months “to address the outstanding issues of this case”, based on his doctor’s assessment. He explains that, over the past two years, he has experienced the deaths of several close family members, including two which occurred in distressing circumstances, which has demanded several difficult trips out of the country as they all resided in the U.S.A. and Jamaica. In support of his request, the applicant attached a letter from his psychologist.

The psychologist’s letter states, in part, that the applicant has suffered several losses and misfortunes which have led to medical conditions that affect his ability to adequately perform the task of reviewing his performance with the respondent, State Farm Mutual Automobile Insurance Company (“State Farm”). The letter goes on to state that, due to the applicant’s “medical/psychological reactive experience”, he needs more time to address his position as an “employee” of State Farm. It is the psychologist’s opinion that, as they work through issues over the next three to six months, the applicant should again be sufficiently capable to address the requirements of “this assignment”, and be ready and prepared to work through the issues of the Tribunal.

It is unfortunate that the applicant made his adjournment request only four business days before the scheduled hearing, although he did advise the respondent and the Tribunal on August 22, 2012 that he was awaiting a letter from his doctor to support a request for an adjournment. The applicant has now filed a letter from his treating psychologist with the Tribunal.

In my view, the psychologist’s letter is not as clear as it could have been. Nevertheless, I understand from the letter that the applicant has suffered circumstances leading to medical conditions affecting his ability to adequately prepare for the currently scheduled hearing dates. The opinion of the psychologist is that over the next three to six months, the applicant should be sufficiently capable to address this matter. I also note that the applicant is self-represented. In my view, the medical information before me is sufficient to justify an adjournment of the hearing dates for six months on the basis of exceptional circumstances existing. While I am prepared to allow the applicant’s request for an adjournment, I want to be clear that this proceeding cannot be delayed indefinitely. See Blakely v. Queen’s University, 2011 HRTO 891, at para. 7.

The applicant’s request for an adjournment of the September 11 and 12, 2012 hearing dates is allowed, and State Farm’s request that this Application be dismissed, as against it, is dismissed.

Within seven days of the date of this Interim Decision, the parties are directed to provide the Tribunal with their availability to attend a hearing in March 2013, and the Tribunal will schedule new hearing dates for as soon as possible after March 1, 2013.

The applicant is directed to file his materials required pursuant to Rules 16 and 17 of the Tribunal’s Rules of Practice no later than 45 days prior to the first scheduled hearing date, and is reminded of the importance of complying with these requirements as set out in the Tribunal’s CAD dated August 15, 2012. If the applicant fails to comply with this requirement, his Application may be dismissed as abandoned.

3Following the aforementioned Interim Decision, the Tribunal wrote to the parties on September 19, 2012 regarding the re-scheduling of the hearing in early March 2013 as directed. All respondents replied to the Tribunal’s request for their availability. The applicant did not. The Tribunal followed up again with the applicant on October 16, 2012. Once again, the applicant did not respond. As a result, new hearing dates were scheduled based upon the respondents’ availability.

4On October 18, 2012, a Notice of Confirmation of Hearing was sent out confirming the hearing dates on March 4 and 5, 2013. All parties were given a 14-day period in which to advise if they were unavailable on these hearing days. Nothing was heard from the applicant.

5The Notice of Confirmation of Hearing once again reminded the parties of their obligations under the Rules to make disclosure of all arguably relevant documents within 21 days, and to file a list of witnesses, witness statements and documents upon which they intend to rely 45 days in advance of the hearing. The respondents long ago already had complied with these obligations. The applicant had not.

6By November 7, 2012, the applicant was supposed to have made disclosure to the respondents of all arguably relevant documents in his possession, and to have filed with the Tribunal a statement of delivery confirming he had done this. Nothing was received from the applicant.

7By January 18, 2013, the applicant was supposed to have served and filed his list of witnesses, witness statements and the documents he intended to rely upon at the hearing. He did none of this.

8On January 21, 2013, counsel for the respondent State Farm wrote to the Tribunal to indicate that the applicant once again had failed to comply with his obligations under the Rules and the Tribunal’s explicit direction that he do so. It has now been over two weeks since that letter was sent to the applicant, and he still has not responded or complied with his obligations in any fashion.

9As stated in Ouwroulis v. New Locomotion, 2009 HRTO 335 at paras. 6 and 7:

… 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.

10The applicant has been reminded of his disclosure and pre-hearing obligations under the Rules on no less than five previous occasions: (1) when the original notice of hearing was sent to him on November 30, 2011 scheduling the hearing for April 11 and 12, 2012; (2) after these dates were adjourned at the applicant’s request, when a second notice of hearing was sent to him on April 3, 2012 re-scheduling the hearing for September 11 and 12, 2012; (3) when the Case Assessment Direction dated August 15, 2012 was issued by the Tribunal specifically to advise the applicant of his failure to comply with these obligations and his need to comply within 7 days; (4) in the Interim Decision dated September 7, 2012 granting the applicant’s request for a further re-scheduling of the hearing, in which he once again was reminded of his failure to comply with these obligations and his need to comply; and (5) when the third notice of hearing was issued on October 18, 2012.

11Further, the applicant has been warned by this Tribunal on two occasions that his failure to comply with his disclosure and pre-hearing obligations under the Rules may result in the dismissal of the Application as abandoned— once in the Case Assessment Direction dated August 15, 2012, and again in the Interim Decision dated September 7, 2012.

12Time and again, the applicant has failed to comply with these obligations and has failed to heed the reminders, directions and warnings issued by this Tribunal. It is now less than one month before the hearing, and the respondents once again find themselves without proper disclosure. The applicant is the person who commenced this legal proceeding, and it is his responsibility to ensure that he complies with his obligations or provides some justification for his continued failure to do so. The applicant repeatedly has not done this.

13In these circumstances, I find that it is appropriate to dismiss this Application as abandoned due to the applicant’s repeated failure to comply with his obligations under the Rules.

14The Application is hereby dismissed and the hearing dates currently scheduled for March 4 and 5, 2013 are cancelled.