Cameron v. Ontario (Training, Colleges and Universities), 2013 HRTO 945

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Cameron

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Training, Colleges and Universities

Respondent

DECISION

Adjudicator: David Muir

Date: May 29, 2013

Citation: 2013 HRTO 945

Indexed as: Cameron v. Ontario (Training, Colleges and Universities)

WRITTEN SUBMISSIONS

Robert Cameron, Applicant

Self-represented

Her Majesty the Queen in Right if Ontario as represented by the Minister of Training, Colleges and Universities, Respondent

Melanie Herbin, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to the provision of goods and services because of a disability.

2This hearing was scheduled to begin on April 15, 2013 at 9:30 a.m. in Toronto. For reasons that will be elaborated below the face to face hearing to hear the merits of the Application was converted to a telephone conference call to hear submissions on whether or not the Application should be dismissed as an abuse of process. The applicant did not attend at the hearing.

3For the reasons that follow the applicant is dismissed. I find that the applicant has abandoned the Application. I also find that the applicant engaged in sufficiently egregious conduct that the Application must be dismissed as an abuse of process.

BACKGROUND

4In a Case Assessment Direction (“CAD”) dated June 1, 2011 the Tribunal directed that a summary hearing be held by conference call to determine whether or not all or part of this Application should be dismissed because it had no reasonable prospect of success. The hearing was first scheduled to take place on December 8, 2011 but was adjourned at the request of the applicant.

5At the first scheduled day of hearing the applicant raised a number of procedural issues with respect to the scheduling of the hearing and claimed that the Tribunal and the respondent had not complied with the Rules regarding scheduling. He also repeatedly suggested without any basis that the Tribunal was taking directions from the Attorney General in its handling of the case. The applicant also claimed that the respondent had not complied with Rules 16 and 17 ignoring the fact that these Rules did not apply in the Summary Hearing process. The applicant claimed that because of the respondent’s non-compliance he was not prepared to proceed.

6The applicant was taking the position in effect that the hearing could not proceed because of alleged and very technical deviations from the Rules, such as for example when the case had to be re-scheduled the respondent had not provided 5 alternative dates for the hearing. Although the applicant claimed this was in violation of the Tribunal’s Rules it was not, although in a Practice Direction on re-scheduling of matters the parties are directed to provide five alternative dates when asking for an adjournment or re-scheduling of a hearing date. None of the applicant’s objection had any merit and none had affected in any substantial way the fact that the date selected had been a date mutually acceptable to the parties at some point in time.

7After some considerable period of time dealing with these technical objections the applicant, in response to my asking why even assuming all of his objections were well founded he was not prepared to proceed, the applicant advised for the first time that he had a job interview and had to leave in 10 minutes. The applicant also claimed that he had advised the respondent and the Tribunal of this in an email sent on November 26, 2011. The respondent advised that they had not received any such email and in fact no such email was sent to the respondent. A subsequent search of the Tribunal’s records revealed that the applicant had sent an email only to the Tribunal on November 26, 2011 despite repeated warnings that correspondence not copied to the respondent would not be considered by the Tribunal. This email included, amongst a number of other things, the applicant’s advice that he was not available on the scheduled day because of a prior commitment.

8In the circumstances, I advised the parties that I considered that the applicant’s announcement that he could not proceed as an adjournment request. I dealt with the request as follows in 2011 HRTO 2240:

I advised the parties that I considered Mr. Cameron’s announcement that he could not proceed with the summary hearing because he had to attend a job interview as a request to adjourn the hearing. The respondent did not consent to the adjournment request. The respondent indicated that the applicant had, contrary to his primary position, been offered a number of dates to choose from in correspondence sent by email on October 18 and November 7, 2011. The respondent stated that the applicant chose not to respond to either email and accordingly the Tribunal selected the date based on the advice of the respondent that it was available on December 8, 2011 (amongst others of the dates offered). The respondent also stated that there is no indication that the applicant advised the Tribunal that he was unavailable on the selected date.

Despite the respondent’s submission, which had considerable merit, I adjourned the hearing with reasons to follow. The file will be returned to the Registrar to be rescheduled. The applicant’s ultimate claim is that he did not receive the Tribunal’s correspondence of October 18 and November 7, 2011, asking for his input in respect of a number of proposed dates for this hearing. These communications were by email and the applicant claims that he did not receive them. He claims as well that when he received in the mail the Notice of Confirmation of Hearing dated November 15, 2011, he wrote to the Tribunal to advise that he was not available. He claims that this email was sent to the Tribunal and the respondent on November 25, 2011. As indicated above the respondent did not receive this email but it was received by the Tribunal.

Despite my misgivings about these failed communications, I am not prepared at this stage to conclude that the applicant is deliberately misleading the Tribunal although he is largely the author of his own misfortune in his repeated failure to comply with the Tribunal’s Rules, most notably in routinely not copying the respondent when communicating with the Tribunal. Assuming that his claim not to have received the correspondence offering dates on October 18 and November 7, 2011 to be accurate, it would not be fair or just to proceed with the hearing. To be clear, this adjournment is being granted on the basis that the applicant upon receipt of the Confirmation of Hearing advised the Tribunal that he was not available on the selected date and that he had not received the earlier communication offering this date amongst several others. The applicant’s other technical objections to proceeding did not merit the adjournment of the hearing.

Given the apparent difficulties in communicating with the applicant by email, I direct that further communication with respect to re-scheduling of the summary hearing be by mail.

9In this Interim Decision I also reminded the applicant again of the nature of the Summary Hearing process which he appeared not to appreciate as evidenced by his complaints about the respondent’s alleged failure to comply with the production requirements of Rules 16 and 17.

10I also observed that the applicant’s behaviour in the hearing was less than acceptable. He repeatedly raised his voice despite admonishments from me about this. He spoke over and interrupted both counsel for the respondent and myself despite repeated admonishments from me. As indicated earlier he repeatedly suggested that the Tribunal and I were being directed by the Attorney General and the “government” in an effort to manipulate the process in the respondent’s favour. He accused the respondent of lying without any basis.

11The applicant was advised that such conduct was not conducive to the fair, just and expeditious adjudication of these cases. The applicant was directed to decisions of the Tribunal commenting on the responsibilities of the parties appearing before it – Ouwroulis v. New Locomotive, 2009 HRTO 335 and Cochrane v. Workplace Safety and Insurance Board, 2010 HRTO 913. The applicant was also advised at the hearing and in the Interim Decision that conduct as exhibited by the applicant has been found to constitute an abuse of process in some cases resulting in the dismissal of an Application. The applicant was directed to decisions of the Tribunal where this was the result.

12A second date was scheduled for June 8, 2012. Both parties were in attendance at that time.

13At the outset of the re-scheduled hearing the applicant requested an accommodation in the form of a call back – that is he required that the Tribunal engage him in the conference call by calling him. I asked the applicant why he was raising this issue at the hearing when the conference call had been scheduled for some months. The applicant had no explanation for not having alerted the Tribunal and the respondent to this issue in a timely way. I also observed that the reasons for the request were somewhat obscure and there was no documentation to support the need for accommodation. However as it was possible to comply with the applicant’s request without significant difficulty, the conference call was able to continue with the requested accommodation.

14The Summary Hearing proceeded in June 2012.

15The respondent through a program called Second Career provides financial support including financial aid for tuition and living expenses for persons seeking retraining and a productive return to the workforce. The applicant made an application for funding under this program. In his Application the applicant made essentially two allegations. First the applicant believes that he was denied Second Career funding because of his need for surgery and was told by an official of the respondent that if he took the surgery when it had been scheduled he would be kicked out of the program. Essentially this claim is that he was forced to choose between having a necessary surgery and being in receipt of funding from the program. Secondly the applicant alleges that he was subject to a reprisal in the form of incessant requests for information by the respondents.

16As I indicated in Interim Decision 2012 HRTO 1474 these were the issues over which the Tribunal may have jurisdiction. However the applicant raised a significant number of additional issues with the Second Career program and it became difficult to sort out what the applicant was relying on in these proceedings as opposed to other matters which he suggested repeatedly would be forthcoming in other proceedings. However it appeared at the end of the day that the issues above were the issues raised by the applicant for adjudication in this Application. After considering the submissions of the parties I dismissed the reprisal allegation as having no reasonable prospect of success and directed that a one day hearing be scheduled to hear evidence and submissions on the remaining issue that the respondent forced the application to choose between medically necessary surgery and funding under the respondent’s program.

17A hearing day was scheduled in September 2012. The hearing was to begin on Friday April 12, 2013 in Toronto.

18Consistent with the Tribunal’s practice, when it was noted that the applicant had not complied with his obligations to make final disclosure in anticipation of the hearing a CAD was issued on March 8, 2013.

19The text of the CAD, which is a standard form document issued routinely by the Tribunal where one or other or both of the parties have not produced materials as required, is as follows:

This Case Assessment Direction alerts the applicant to the fact that he has failed to comply with the obligations under Rules 16 and 17 to deliver to every other party and file with the Tribunal a witness list, witness statements, and copies of documents the party intends to rely upon no later than 45 days prior to the hearing. There are serious consequences for the case if this step not taken, set out at the end of this Case Assessment Direction.

The Notice of Confirmation of Hearing summarized the requirements as follows:

Unless otherwise directed by the HRTO, not later than February 26, 2013 you must deliver to every other party and file with the HRTO:

• a list of all documents you intends to rely on at the hearing;

• a copy of each document on that list for the HRTO;

• a copy of every document on that list for each party or confirmation every document has already been provided to the other parties;

• a witness list that includes the name of every witness, including expert witnesses, you intend to present to the HRTO;

• a statement summarizing the expected evidence of each witness;

• where you intend to rely on the evidence of a proposed expert witness, a copy of the expert’s written report or a full summary of the expert’s proposed evidence and the expert’s curriculum vitae;

• the Statement of Delivery of the Rule 16.2 list and documents on the other parties.

In C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426, the Tribunal explained, at para. 7:

The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent.

20In the March 8, 2013 CAD the applicant was directed to deliver and file the materials required under the Rules within 7 days of the date of the CAD failing which the Application might be dismissed as abandoned.

21In apparent response to the March 8 Directions the applicant indicated that he would be calling four witnesses and would be relying on the submissions already filed. The applicant identified as his potential witnesses: Joyce Burke, RNA; Dr. Joseph Fallett, MD.; Lorrie Corby; and Melanie Herbin. Melanie Herbin is counsel for the respondent and Lorrie Corby is an employee of the respondent. The applicant further indicated that he would be summonsing these four individuals to the hearing. There is no indication that he ever did so, and the applicant did not request summonses from the Tribunal.

22In a CAD issued to the parties on March 15, 2013 I indicated that the applicant was not in compliance with the Tribunal’s Rules and Directions and made further Directions to the applicant as follows:

a. The applicant will deliver and file a list of the documents he intends to rely on at the hearing before 12:00 Noon Friday March 22^nd 2013 ;

b. The applicant will deliver and file a summary of the expected evidence of any witness he proposes to call at the hearing before 12:00 Noon Friday March 22^nd 2013.

23The applicant did not comply with these Directions. In particular, at this point it was entirely unclear what, if any, documentation the applicant was intending to rely on. It was also not clear what his proposed witnesses were expected to say. This was a particular concern as regards the medical witnesses and the proposed calling of respondent’s counsel.

24In a CAD issued on March 22, 2013 I outlined my concerns with the applicant’s failures to that point to comply with the Tribunal’s Rules and my prior Directions. I advised the applicant that the hearing was scheduled to begin in three weeks and that it was important that he provided the information the Rules and my Directions required.

25I also concluded, given the remaining issues in dispute and in the absence of any communication from the applicant about why respondent’s counsel had any evidence to give in respect of the issues in dispute, that it would not be appropriate for Ms. Herbin to give evidence. Further Directions were made to the applicant to deliver and file a list of the documents he intended to rely on and a summary of his proposed witness’ evidence on or before Noon Tuesday April 2, 2013.

26Little more than an hour after the release of the March 22, CAD the applicant responded to it as follows:

Please be advised that given your actions of prejudicing this hearing by attempting to limit and pick and choose my witnesses as an applicant so evidence can be heard, that I am requesting your immediate removal from this hearing.

First, I made this Tribunal aware that i have contacted the Human Rights Legal Clinic on March 15th, 2013 and you have failed to consider this fact. This hearing will not proceed until I have had my meeting this clinic and retained their services. They are indicating that it will take another week to have that meeting.

In addition, you have misrepresented and lied in you CAD of March 15th, 2013 and today March 22nd, 2013 as to what I have wrote in terms of my witnesses.

I have specified that the following witnesses will be called.

-Joyce Burke RNA – who will testify as to the medical condition that I faced when I enrolled in the Second Career training program.

-Dr. Joseph Falletta MD – my family doctor who will testify as to the medical condition that I faced when I enrolled in the Second Career training program and present medical information related to my surgery during that period.

-Lorrie Corby – will be properly examined by legal counsel and testify as to the events and statements she made to me in the months of August 2010 through to March 2011.

-Melanie Herbin - will be properly examined and testify as to the events and statements she made to me in the months of August 2010 through to March 2011.

-Robert F. Cameron – I will gladly testify and be examined by my legal counsel as to the statements made by Lorrie Corby, the actions of this civil servants in denying my fundament rights to services under the Ontario Human Rights code and to the subsequent actions of Melanie Herbin, LLB in denying me services in contravention of the Ontario Human Rights Code.

You do not have the right as an adjudicator to strike from the list ANY individual claiming government priviledge (sic) and that they have nothing to offer prejudicing their testimony at this tribunal. It is clear that YOU as an adjudicator are prejudicing this hearing and my rights by trying to pick and choose which individuals are allowed to be cross examined or testify at this hearing.

This is all appealable actions to the Divisional Court of Ontario. You are not above the laws of Ontario.

27In an email received by the Tribunal on April 3, 2013 at approximately 11:10 a.m. the applicant indicated for the first time that he had not received notice of the hearing scheduled for April 12, 2013 and claimed that the first he was aware of it was when he received the respondent’s submissions of April 2, 2013. The applicant sought the adjournment of the hearing. The applicant claimed a constitutional right to counsel. On April 4, 2013 the applicant reiterated his request that the hearing be adjourned while he retained and provided instruction to a representative.

28On April 4, 2013 the applicant wrote to the Tribunal and made a number of highly inappropriate comments about an employee of the respondent and respondent’s counsel as well as repeating allegations about the independence of the Tribunal. Portions of this correspondence are set out here:

The HRTO and its boss the ATTORNEY GENERAL OF ONTARIO (from whom it derives its paycheque as a "AG Social Benefits Tribunal cluster" is fully admitting that no date was named by either the HRTO Adjudicator, the Registrar or the Attorney General lawyer who is refusing to recuse herself as she is intimately involved in the denial of the Human Rights Code in this file. The fact that the lawyer who is a party to this is refusing to remove herself shows the corruption of the Human Rights Tribunal of Ontario being controlled and directed directly by the Attorney General of Ontario. The Ministry is no longer a litigant in this matter, the Ministry through its counsel is directing the HRTO as to who can be called as witnesses to a violation of the Human Rights Code of Ontario, when hearing dates are being set and not specified and when they should be declared as "abandoned" even without a proper hearing. My constitutional rights under the Charter of Rights are being violated in the extreme in this HRTO matter.

The Ministry lawyer is hysterical and irrational and now creating evidence and is attempting to force and cajole by force of words and direct the HRTO in its scheduling to ensure this hearing does not proceed or evidence is properly given.

This is after MS HERBIN denied me my fundamental rights to TRAINING FOR A PERIOD OF EIGHT MONTHS AFTER THE Ministry of Colleges Training Staff Member Lorrie Corby attempted to assault me numerous times when I was forced to report to their offices. The Ministry lawyer now claims that Ms. Corby conveniently is not available and will make no statements or allow any cross examination. And the Ministry lawyer claims that I as the Applicant has refused "FULL Disclosure" when the Ministry is relying soley (sic) on evidence from a Manager but not the key person who is at the CENTRE OF THIS DENIAL OF HUMAN RIGHTS.

NOW AFTER 3 YEARS OF DELAYS AND INCESSANT HARASSMENT BY THIS LAWYER MELANIE HERBIN WHO PERSONALLY BECAME INVOLVED IN THIS FILE TO DENY ME SECOND CAREER TRAINING BY REPEATING THAT OVER 40 TIMES THAT I HAD NOT SUBMITTED INFORMATION THAT i SUBMITTED OVER AND OVER AGAIN for 8 months beyond this denial of my fundamental human rights, this same Lawyer is demanding the HRTO FILE BE CLOSED AS "i HAVE ABANDONED MY CLAIM." This is patently false and and is an attempt to control the process and eliminate this claim in whole.

It is apparent, THIS LAWYER WILL STOP AT NOTHING TO MANIPULATE AND ATTEMPT TO CONTROL THE VICE-CHAIR OF THE HUMAN RIGHTS TRIBUNAL OF ONTARIO and is demanding that the Vice Chair of the HRTO follow her directions.

I believed that the MCTU Staff member at the centre of this [L. C.] was mentally ill given she kept trying to kick me and assault me in meetings at the Ellen Faircloth Building in Hamilton. I feared for my safety in her presence. The Ministry is now claiming that this individual is not available and that in of itself should be enough to grant an adjournment as proper statements and cross examination of this individual must take place. I have submitted numerous email correspondence from this individual that demonstrates she was at the centre of the denial of my rights under the Human Rights Code of Ontario.

"There are three weeks left before the hearing"

As stated above, I have received not Notice of Hearing whatsoever in this file. The Adjudicator at no time made me aware of any hearing date was scheduled. The Ministry and the HRTO are admitting this by these references to CAD's.

The Ministry lawyer is unbelievably attempting to tell me not to attend a job interview and ONLY attend a HRTO hearing! where she can attempt to abuse me further in the denial of my rights and their attempt to shield and ensure witnesses and their evidence is not heard by the HRTO.

It is the same denial of human rights that the MCTU staff member Lorrie Corby did in 2009 and 2010.

The Ministry lawyer is once again attempting to pry into my personal life and then use it to deny me my fundamental human rights. The Ministry lawyer is an obsessed depraved individual who stays until 8 and 9 pm at her office and writes demanding briefs that are abusive and mentally insane.

I have a job interview out of the province and I will provide proof of it to my legal counsel and to through them to the HRTO.

In addition, the Ministry lawyer is refusing to acknowledge that I am entitled to legal counsel.

I have been contacted late today finally with an appt at the Human right Legal support centre. It is scheduled for the April 10th in the afternoon. I dont believe the counsel will be able to be prepared for a hearing on April 12th and I will not be available beyond April 11th.

I demand my fundamental human rights not be abrogated by the mentally insane lawyer Melanie Herbin and the equally mentally insane staff member at MTCU Lorrie Corby. I request an adjournment two months hence to June, 2013.

Thank-you.

29In an Interim Decision issued on April 8, 2013 (2013 HRTO 566) I dealt with the various issues raised by the applicant’s communications of March 22 and April 3 and 4, 2013.

30The applicant’s request that I remove myself for bias was denied. Similarly the request to adjourn the hearing was denied. I concluded that the applicant had received timely Notice of the hearing date and had been reminded several times that the hearing was approaching. I did not accept the applicant’s claim that he had not received timely Notice of the Hearing. I also rejected the applicant’s claim that because he was attempting to retain a representative just prior to the hearing that this was a sufficient basis to adjourn a hearing that had been scheduled months before.

31I also denied the respondent’s request that the Application be dismissed as abandoned as a consequence of his failure to comply with the Tribunal’s Rules and Directions.

32However as a consequence of the manner in which the applicant appeared to be approaching this case, his incomplete compliance with the Tribunal’s Rules and Directions; his baseless accusations about the conduct of the respondent’s counsel, the baseless allegations of misconduct on my part; and his unsubstantiated claims, for example the clearly false claim that he had not received Notice of the hearing date until April 2, 2013, I directed that the in person hearing on April 12 be converted to a telephone conference to hear the parties submissions with respect to what appeared to be an abuse of process on the part of the applicant.

33The applicant wrote to the Tribunal at 11:55 p.m. on April 8, 2013 referring to a CAD dated April 8, 2013 (it appears this was a reference to Interim Decision 2013 HRTO 566 issued on April 8, 2013):

RE: CAD of April 8th not complying with the HRTO rules re service vis-a-vis hearing for April 12, 2012

In response to the CAD of Vice Chair David Muir. I am outraged by a 16 page CAD that slanders me, misrepresents the facts and denies me my due process rights as guaranteed by the Charter of Rights and Freedoms.

I demand that this hearing for April 12th be adjourned to allow me time to submit my reply and meet, consult, retain and instruct counsel. If you fail to do this, I will sue you in the Divisional Court forthwith.

34On April 10, 2013 at 6:10 p.m. the applicant wrote to the Tribunal reiterating his request for an adjournment because amongst other reasons he had previously made arrangements for a job interview on the day and was unable to attend. The applicant also advised that he could not participate in a telephone conference call that day because he had been advised that there would be no power in his building between 9:00 and Noon on the day of the hearing. The adjournment request was denied but the applicant was offered a number of alternatives that would allow him to participate in the conference call as follows:

a. The applicant may participate in the call at the scheduled time by attending at the Tribunal’s Hearing Centre at 655 Bay Street, 14^th Floor, in Toronto. The applicant can be provided with a room and a telephone. The hearing could begin at 10:00 a.m in order to allow the applicant extra time to attend in Toronto.

b. Alternatively if the applicant wishes to do so he may provide his submissions on the issues raised in my Interim Decision, in writing.

c. Finally the telephone conference call could begin at 2:00 p.m. on Friday April 12, 2013.

35The applicant was directed to indicate which of these options he preferred, before 5:00 p.m. that day, Thursday April 11, 2013, failing which the hearing would begin as scheduled on Friday April 12, 2013 at 9:30 a.m. Shortly after these Directions were made the applicant responded as follows:

Mr. David Muir has refused to provide any proof whatsoever that I was advised of this hearing from September, 2012. No Notice of Hearing was recieved (sic) by me.

In addition, David Muir never referenced this hearing date in any CAD's listed in this file.

David Muir keeps referencing "additional submissions" in his CAD's without specifying what it is he requires. I as the Applicant have indicated that I will submit evidence from my family doctor and my aunt who is an RPN as to my medical condition at that time of the violation of my Human rights.

Mr. David Muir is indicating that he is unwilling to wait for these submissions and is advising me as the Applicant that I must proceed with a full application hearing while i am out of the province.

I have provided proof of this in the form of a letter from the employer. Mr. David Muir is totally disregarding this fact after he himself demanded this and he agreed with the Respondent Attorney General lawyer that I am "making up excuses" not to attend HRTO hearing.

Now today less than 24hrs before the hearing Mr. David Muir is refusing to adjourn this "hearing" that is a farce after I met his standard for an adjournment and demanding psychotogically (sic) that I attend the HRTO in Toronto to take a telephone downstairs to listen to his ranting and raving about not requesting time to meet with the Human Rights Legal support Centre and prepare my further submissions which he fails to specify as to what I need.

Mr. David Muir has turned this process into a farce and should be immediately removed from this file.

Robert F. Cameron

I will not be able to telephonically attend and I ask that any further correspondence be referred to Lori Myshkin at the HRLSC

36As indicated earlier at the time set for the hearing the applicant did not attend the conference call. Consistent with Tribunal practice the hearing was adjourned for thirty minutes to allow the applicant further time to attend. At 10:00 a.m. the applicant was not in attendance and the hearing proceeded in his absence.

Abuse of Process

37The respondent argues that the Application should be dismissed as an abuse of process as a consequence of the applicant’s failure to comply with Tribunal’s Rules and Directions and his conduct in the proceeding including his disrespectful and abusive treatment of the respondent, respondent’s counsel and the Tribunal. The respondent argues that although the applicant seeks to secure the Tribunal’s authority in support of its rights, he denies the Tribunal’s responsibility to control its process and make direction when it is appropriate to do so.

38Section 23(1) of the Statutory Powers Procedure Act (“SPPA”), R.S.O. 1990 c. S. 22 as amended provides as follows:

A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

39Rule 1.7 (v.1) of the Tribunal’s Rules of Procedure authorizes the Tribunal:

To make such orders or give such directions as are necessary to prevent abuse of its processes and ensure that the conduct of participants in Tribunal are courteous and respectful of the Tribunal and other participants.

40Pursuant to these provisions the Tribunal has dismissed an Application as an abuse of process where it found that a party had “engaged in a scheme to subvert and abuse the Tribunal’s process” (in this case by fabricating witness statements). See Nyonzima v. Idlewyld Manor, 2011 HRTO 1517.

41The Tribunal has also dismissed an Application in circumstances where the applicant has shown that they would not conduct themselves in accordance with the Tribunal’s Rules requiring that the parties before it treat each other and the Tribunal with courtesy and respect. This obviously depends on the specific facts of the applicant’s conduct, but this has included situations in which applicants have engaged in conduct or made comments that were abusive and disrespectful to the Tribunal or the other parties or have made serious yet unfounded allegations against the Tribunal or another party. Depending on the specific circumstances, it might also, in my view, include consistent failures to comply with the Tribunal’s Rules of Procedure or properly responding to the Tribunal’s directions. See, for example, Drenic v. The Governing Council of the Salvation Army in Canada (“Drenic”), 2010 HRTO 1667.

42In my view the applicant has not treated this proceeding with the seriousness that is required of a litigant before the Tribunal. More specifically, the applicant has consistently failed to comply with the Tribunal’s Directions. Although aware of his responsibilities to produce his documents and provide will-says since he received the Notice of Confirmation of Hearing in September 2012 the applicant failed to comply. When directed to do so on March 8, 2013 he failed to comply. When further directed to do so on March 15, 2013 he again failed to comply. Finally on March 22 he provides some of what was required but remains non-compliant. Pre-hearing disclosure obligations are more than mere technical requirements, as noted previously in this proceeding, they are “a critical part of the Tribunal’s process” (see para. 19, above, and the reference there to C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426).

43I also find that the applicant’s indication that he intended to call respondent’s counsel as a witness was done for tactical reasons to delay the hearing and to vex and harass the respondent. It was reasonably clear from the outset that counsel would have no relevant evidence to give but the applicant was given an opportunity to explain how she might be a witness to the issues in dispute. Despite being given several opportunities to do so the applicant refused to provide this explanation.

44I also find that the applicant has made baseless allegations of misconduct on the part of the Tribunal and counsel for the respondent. Most troubling is the applicant’s abusive and discriminatory comments about counsel for the respondent. The applicant had been warned about his abusive and disrespectful behaviour both orally at hearings and in 2012 HRTO 2240 above. Despite these warnings the applicant’s behaviour escalated as the hearing date approached. This kind of behaviour is unacceptable and in my view constitutes an abuse of process.

45I also find that the applicant deliberately misled the Tribunal on at least one occasion when he claimed on April 3 that he was not aware of the hearing date of April 12, 2013 until he received the respondent’s submissions of April 2, 2013. This is clearly not the case. As I pointed out in 2013 HRTO 566 the Notice Of Confirmation of Hearing (“Notice”) was sent to him by regular mail on September 20, 2012 and not returned. I find that the applicant could not have been unaware that the hearing date was imminent as of March 8 when he received the CAD of that date. While the March 8, 2013 CAD did not specifically reference the April 12, 2013 hearing date it made express reference to the fact that the applicant had failed to file his materials as required 45 days prior to the hearing. I also note that in each of the CAD’s issued on March 8, 15 and 22, 2013 reference was made to the Notice which the applicant has claimed never to have received. The applicant had much to say about the CAD’s issued in this case but offered no explanation for his failure to enquire about the Notice I kept referring to but which he had allegedly not received. Further in the March 22, 2013 CAD I pointed out to the applicant that the hearing was three weeks away. For the applicant to claim that he did not know that there was a hearing scheduled for mid-April is simply not believable.

46Given my finding that the applicant knew of the April hearing date in September 2012, it is inexplicable why he agreed to a job interview that day. In my view it is reasonably clear that the applicant hoped to delay the proceeding as he had on the first day of the summary hearing in December 2011.

47The applicant is ungovernable. Despite repeated warnings his disrespectful and abusive conduct continued. Despite repeated opportunities afforded him to bring himself in compliance with the Tribunal’s Rules and Directions in order to ensure that the hearing proceeded he largely failed to take those opportunities and instead he made further baseless allegations of misconduct on my and counsel’s part. When it became apparent to the applicant that despite his non-compliance the hearing was going to proceed the applicant sought an adjournment based on a false claim of a failure of Notice. In my view this is a clear case where the only appropriate remedy is the dismissal of the Application.

48I also find as indicated above that the applicant is deemed to have abandoned the Application having failed to attend the hearing on April 12, 2013.

49For all of these reasons the Application is dismissed.