J.A. v. Ottawa-Carleton District School Board, 2013 HRTO 662

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.A. by her Next Friend P.A.

Applicant

-and-

Ottawa-Carleton District School Board, Steven Massey and Christopher Kesner

Respondents

DECISION

Adjudicator: Leslie Reaume

Date: April 19, 2013

Citation: 2013 HRTO 662

Indexed as: J.A. v. Ottawa-Carleton District School Board

APPEARANCES

J.A., Applicant

No one appearing

Ottawa-Carleton District School Board, Steven Massey and Christopher Kesner, Respondents

Roger Mills, Counsel

Introduction

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of creed.

2This matter was scheduled for hearing on November 27, 28 and 29, 2012.

3On October 23, 2012 the parties participated in a case management conference call for the purpose of dealing with the many procedural issues raised by the applicant and a Request by the respondents for an opportunity to make oral submissions on a preliminary issue, namely, whether the Application should be dismissed in whole or in part for no reasonable prospect of success. The goal of the case management meeting was to determine the next steps for the conduct of an orderly and fair hearing.

4Following the case management meeting, I considered all of the outstanding issues and determined that I would grant the Request of the respondents to hear oral submissions on the preliminary issue. On November 16, 2012 I issued a Case Assessment Direction (“CAD”) advising the parties to that effect. While the parties had filed full written submissions on this issue (the applicant opposing the respondent’s request to dismiss), section 43(2) of the Code provides that the Tribunal shall not finally dispose of an Application within its jurisdiction without first providing the parties with an opportunity for oral submissions.

5In the CAD of November 16, 2012, I set out a description of the process for the hearing of the no reasonable prospect of success issue and indicated that the first day of the previously scheduled hearing dates would be reserved to hear the applicant’s arguments. The second day of the hearing would be reserved to hear argument from the respondent and reply from the applicant, if necessary. The applicant’s next friend, P.A., was advised that he would be required to explain what evidence is reasonably available to establish that the respondents engaged in conduct which resulted in an adverse impact on the applicant. He would also be required to explain what evidence would be reasonably available to him to link any adverse impact with the applicant’s religious beliefs.

6I indicated in the CAD that if the Application was not dismissed following the hearing of this issue that I would issue directions for the next steps in the hearing process.

7The applicant then wrote to the Tribunal on November 19, 2012 indicating that he was disappointed in the decision to grant the respondent’s Request, reserving the right to make further comment once he had considered my ruling. On November 22, 2012 the applicant wrote the Tribunal seeking an adjournment of the hearing on the basis that he required further time to prepare.

8I issued a CAD on November 23, 2012 which reads as follows:

On November 16, 2012, I issued a Case Assessment Direction indicating that the scheduled hearing days in this matter would be used to hear oral submissions from the parties in relation to the argument of the respondents that the Application has no reasonable prospect of success. I made this decision after a full review of volumes of material and Requests for Order filed by the applicant’s Next Friend, P.A., filed both before and after the case-management conference call of October 23, 2012. After careful consideration of the issues and the materials filed by the parties, I granted the respondents’ request to hear oral submissions on the question whether there is evidence, which is reasonably available to the applicant, to demonstrate a nexus between the alleged actions of the respondent, the disadvantage suffered by the applicant and the prohibited grounds alleged. I also determined that this issue should be addressed before the other Requests filed by the applicant were resolved.

P.A. was given one full day, in person, to make his argument and part of a second day for reply to the respondent’s submissions.

P.A. seeks an adjournment of the hearing scheduled for November 27 and 28, 2012. He indicates that he does not have time to transition from preparing for a hearing on the merits to a summary hearing. He also seeks more than the time allotted to him to make his submissions.

While I used the words “summary hearing” to describe the no reasonable prospect of success issue in the CAD of November 16, 2012, that issue is decided as part of the overall hearing process in the same manner as any other procedural issue. The no reasonable prospect of success issue arises at various points in the hearing process, before and after evidence has been received by the Tribunal. It is the role of the Tribunal to determine the order in which issues will be addressed in the hearing process.

The parties have previously filed full submissions on this issue. In addition, preparation for a hearing on the merits is more onerous than explaining to the Tribunal what evidence P.A. believes is reasonably available to address the no reasonable prospect of success issue. The respondents oppose the request. There is no compelling reason for an adjournment in these circumstances.

If it becomes apparent that P.A. requires more time than has been allotted to him to fairly address the no reasonable prospect of success issue, I will deal with that when the need arises. For now, the hearing will proceed as scheduled.

9The applicant emailed the Tribunal November 26, 2012 with a document entitled “Advisory” indicating that he would not be in attendance at the hearing November 27^th and 28^th. The applicant indicated his intention to seek judicial review of my decision to proceed first with argument on the no reasonable prospect of success issue prior to commencing a full hearing on the merits. The applicant also indicated that the Tribunal should not view his “advisory” as a request to withdraw the application. He asked the Tribunal to hold the proceeding in abeyance until the judicial review was complete.

10On the same day November 26, 2012, I issued a CAD which reads as follows:

The Tribunal is in receipt of the applicant’s Form 23 which indicates that the applicant’s Next Friend, P.A., will not be in attendance at the hearing which is scheduled to commence tomorrow, November 27, 2012, and will seek judicial review.

This Application will not be adjourned to permit the applicant to seek judicial review, which does not operate as a stay of the Tribunal’s process. In addition, there is no final decision from which the applicant may seek judicial review.

The hearing will take place as scheduled. P.A. is to advise the Registrar by 4:30 this afternoon, November 26, 2012, of his intention to attend the hearing, failing which, the Application will be dismissed as abandoned.

11The applicant responded to the 4:30 deadline by resending the document entitled “Advisory”.

12The applicant did not attend the hearing on November 27, 2012. The respondent attended and argued that the Application should be dismissed.

13In Eisenberg v. Seneca College of Applied Arts and Technology, 2012 ONSC 4802 (“Eisenberg”), the Divisional Court affirmed the Tribunal’s entitlement to hold a summary hearing. The Court also upheld the Tribunal’s decision to dismiss the application on the basis that the applicant’s failure to participate in the setting of dates for the summary hearing thwarted the Tribunal’s process.

14The applicant had filed full written submissions in response to the respondent’s arguments on no reasonable prospect of success and as a result, I did not consider it necessary to provide the applicant with more time to prepare. However, when it became apparent that the applicant did not fully comprehend my initial direction, I issued another a more detailed CAD to assist him in his preparations. I also indicated that I would consider a request for more time if it became apparent that more time was required.

15The applicant was fully advised of the consequences of his non-attendance and despite that, he chose not to participate. In my view, there is no realistic alternative but to dismiss this Application as abandoned.

16Accordingly, the Application is dismissed.