May v. Irving Tissue Corporation, 2013 HRTO 294

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William May

Applicant

-and-

Irving Tissue Corporation

Respondent

DECISION

Adjudicator: Mark Hart

Date: February 21, 2013

Citation: 2013 HRTO 294

Indexed as: May v. Irving Tissue Corporation

1This is a transitional Application dated June 17, 2009 and filed under s. 53(5) 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, including the termination of the applicant’s employment and disability benefits. The underlying complaint was filed with the Ontario Human Rights Commission on July 9, 2007.

2In May 2008, the applicant filed a civil action against the respondent seeking damages for wrongful dismissal arising out of the same factual situation set out in the complaint.

3By Interim Decision dated October 20, 2009 (2009 HRTO 1715), the Tribunal denied the respondent’s request that the Application be dismissed due to the civil action, and confirmed the parties’ agreement that the Application should be deferred pending the conclusion of the civil action.

4By letter dated November 29, 2010, the Tribunal wrote to the parties to follow up on the status of the civil action. At this time, the applicant was represented by the same counsel both in the civil action and in the Application before this Tribunal. The applicant was directed to advise this Tribunal within 30 days regarding the status of the civil action. The applicant was advised that if he failed to do so, the Application may be dismissed as abandoned.

5By letter dated December 30, 2010, applicant’s counsel advised that the civil claim had been referred for mandatory mediation which was expected to be held in Spring 2011, that discoveries would be tentatively scheduled for June 2011, and that upon the completion of these procedures, the matter would be scheduled for trial.

6By letter dated July 26, 2011, the Tribunal wrote once again to the parties to follow up on the status of the civil action. Applicant’s counsel was asked to file an update on this matter, including information as to: whether the civil claim went to mediation in Spring 2011 as anticipated; whether the matter had been settled; if not, whether discovery dates had been set for June 2011; and/or whether the matter had been completed or, if not, the anticipated completion date. Applicant’s counsel was directed to provide a response by August 4, 2011.

7When no response was received from applicant’s counsel, a further letter was sent out on August 19, 2011 in follow up. Applicant’s counsel was asked to respond to the questions asked in the Tribunal’s July 28, 2011 letter by August 24, 2011, and was advised that failure to respond could result in the dismissal of the Application as abandoned.

8By letter dated August 25, 2011, applicant’s counsel provided a copy of the Order of Master Haberman in respect of the civil action, requiring that mandatory mediation be completed by December 31, 2011, and that the action be set down for trial on or before May 31, 2012, failing which it would be dismissed with costs and without further notice. Applicant’s counsel further advised that mediation had been postponed to November 29, 2011.

9By letter dated September 8, 2011, applicant’s then counsel copied the Tribunal on correspondence with the parties to the civil action, serving a Notice of Intention to Act in Person. This Notice stated the applicant’s intention to act in person in relation to the civil action. Counsel’s letter stated that all further communications should be sent to the applicant’s last known address as set out in the Notice.

10On August 15, 2012, the Tribunal followed up once again with the parties regarding the status of the civil action. While applicant’s former counsel in the civil action had served a Notice of Intention to Act in Person in relation to that proceeding, counsel had not advised the Tribunal or the respondent that he was no longer representing the applicant in the context of the human rights Application. Accordingly, the Tribunal’s follow up letter was sent to applicant’s counsel and not directly to the applicant. Counsel was directed to file an update in regard to this matter within 30 days.

11When no response was received from counsel, the Tribunal sent a further letter dated December 6, 2012 directly to the applicant. By this letter, the applicant was directed to provide an update within 30 days. This letter specifically indicated that if the applicant failed to do so, the Tribunal may dismiss his Application as abandoned.

12The Tribunal’s correspondence was returned, and received by the Tribunal on January 23, 2013. The envelope was marked “return to sender – moved 2 yrs ago”. The address to which the Tribunal’s letter was sent was the address provided by the applicant in his Application dated June 17, 2009, and the same address as set out in the Notice of Intention to Act in Person in the civil proceeding dated September 8, 2011. Upon receipt of the returned correspondence, a Tribunal staff member attempted to contact the applicant on January 23, 2013 at the telephone number provided on the Application, but found that the phone number was no longer in service. No other phone number and no e-mail address had been provided by the applicant.

13Also on January 23, 2013, the Tribunal contacted respondent counsel to find out if they had current contact information for the applicant. By letter dated February 6, 2013, respondent counsel advised that they had experienced a similar result when attempting to mail the applicant correspondence in the civil action. With regard to the status of the civil action, respondent counsel advised that the mediation scheduled to take place in November 2011 was cancelled due to lack of contact from the applicant, despite attempts to reach him. Counsel further advised that the Ontario Superior Court of Justice had issued an Order on June 12, 2012 dismissing the civil action for delay. A copy of the court’s Order was provided to the Tribunal.

14At this stage, this Tribunal has no means of contacting the applicant. He clearly is no longer at the address he provided. The phone number he provided is not in service. The Tribunal does not have any e-mail address for him. While not obliged to do so, the Tribunal made efforts through respondent counsel to determine whether he had updated contact information for the applicant, only to find that he was experiencing the same difficulties in contacting the applicant.

15Pursuant to Rule 1.10 of the Tribunal’s Rules of Procedure for Transitional Applications (the “Transitional Rules”), a party to a proceeding before this Tribunal is required to notify the Tribunal and all other parties in writing of any change in their contact information as soon as possible. Clearly, the applicant has failed to do so.

16The Application filed by the applicant commences a legal proceeding before this Tribunal. It is the applicant’s responsibility to remain actively engaged in the legal process, which obviously includes maintaining contact with the Tribunal and the other parties and providing them with any updated contact information. By failing to do so, it is my view that the applicant has abandoned his Application.

17Further, this Application was deferred pending the conclusion of the civil proceeding. The civil proceeding was concluded by the dismissal Order dated June 12, 2012. Pursuant to Rule 16.5 of the Transitional Rules, where a transitional Application has been deferred pending the outcome of another legal proceeding, a request to proceed under Rule 16.4 must be filed no later than 60 days after the conclusion of the other proceeding. In the applicant’s case, this 60-day period expired on August 11, 2012, some six months ago. In my view, the applicant’s failure to file a request to proceed with his Application before this Tribunal within the 60-day period as required by the Rules provides further support for the conclusion that he has abandoned his Application.

18For these reasons, the Application is dismissed as abandoned.