Roy D'Mello v. The Law Society of Upper Canada, 2014 HRTO 1262

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roy D’Mello

Applicant

-and-

The Law Society of Upper Canada

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: August 26, 2014

Citation: 2014 HRTO 1262

Indexed as: D’Mello v. The Law Society of Upper Canada

APPEARANCES

The Law Society of Upper Canada, Respondent

Aaron Dantowitz, Counsel

Introduction

1This Application alleges discrimination with respect to membership in a vocational association because of family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), arising out of the scheduling of a disciplinary proceeding against the applicant before the respondent.

2The summary hearing by teleconference took place on August 18, 2014.

3On August 15, 2014 the applicant e-mailed the Tribunal and requested an adjournment due to bronchitis. Although he said he was not able to participate, he provided no reason other than he had bronchitis. The respondent objected to the adjournment because the applicant provided no doctor’s note and has displayed a pattern of delaying the Application and the disciplinary proceeding to which this Application relates.

4The Tribunal e-mailed the parties on August 15, 2014 that the hearing would proceed as scheduled on August 18, 2014 and the applicant’s adjournment request would be dealt with at the outset.

5The applicant did not participate in the teleconference call despite the Tribunal waiting half an hour after the scheduled start time for the applicant to call in. The respondent made submissions both with respect to the adjournment request and with respect to the summary hearing.

decision and analysis

6The Tribunal dismisses the Application as abandoned for the reasons that follow.

7Given my reasons for finding the applicant has abandoned the Application, I need not consider the respondent’s arguments with respect to prosecutorial immunity and no reasonable prospect of success.

8The applicant gave no reason why he could not call in even if he has bronchitis. As directed by the Tribunal, the adjournment request was to be addressed at the outset of the hearing. The applicant did not communicate with the Tribunal at any time after receiving this direction and before the hearing date. He also provided no medical documentation.

9The respondent relied on its written objection to the adjournment request in which it set out the history of the proceeding to date, as follows:

• The respondent’s Request for An Order During Proceedings was filed on July 17, 2013. A summary hearing was originally scheduled to take place on December 18, 2013. The hearing did not commence at 9:30 a.m. but instead began at 10:00 a.m. due to an oversight by the Vice-Chair. The Tribunal attempted to reach the applicant shortly after 10:00 a.m. by telephone and e-mail to reschedule for later that day or the next day, but the applicant did not respond until the end of the day, citing a personal matter. He indicated he was not available the following day.

• On December 19, 2013, the Tribunal offered 5 new dates in January 2014, and asked for a response by December 27, 2013. The respondent on the same day advised it was available on all of the January dates. On December 27, 2013, the applicant advised he had booked an overseas vacation for the last two weeks of January and the first week of February, and asked if there were dates available in March or April.

• When the Tribunal offered 15 dates in April, and May 5 and 6, 2014, the respondent advised it was available on all those dates. The applicant stated he was available on May 6, 2014 only and the Tribunal scheduled the summary hearing for that date.

• On April 28, 2014, the applicant sought an adjournment of the May 6 hearing date, indicating that his father had recently passed away and he needed time off during the first few weeks of May to assist his mother in dealing with estate and other matters. The Tribunal granted the adjournment without hearing from the respondent, and the matter was rescheduled again for August 18, 2014.

10The respondent’s written submission also referred to the June 28, 2013 Law Society disciplinary proceeding endorsement that shows a similar pattern of reluctance or inability to agree to hearing dates.

11The respondent submitted the applicant’s conduct throughout the Tribunal proceeding thus far regarding scheduling is inconsistent with someone who is intent on proceeding with the Application and having the preliminary issues dealt with. I therefore considered these submissions in deciding the issue of whether the application should be dismissed as abandoned.

12The Tribunal has a duty to dispose of applications fairly, justly and expeditiously: see section 40 of the Code and Rule 1.1 of the Tribunal’s Rules of Procedure. The Tribunal has commented on the responsibilities of parties appearing before it. In Ouwroulis v. New Locomotion, 2009 HRTO 335 at paragraphs 4-7, the Tribunal stated as follows:

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.

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.

13The Tribunal considered a late adjournment request for medical reasons in Szabo v. York University, 2012 HRTO 659, and treated the application as abandoned despite the accompanying medical note because the applicant did not provide the note and adjournment request to all the respondents despite the Tribunal’s prior direction and had only asked for the adjournment 10 minutes before the hearing. In this case, the applicant provided no medical note despite the respondent indicating the lack of a medical note was one reason it objected to an adjournment. In addition, he did not call into the hearing even though he was told his adjournment request would be heard at the outset of the telephone hearing.

14Given the applicant’s pattern with respect to scheduling hearing dates, the lack of any documentation or reasons to support why the applicant could not participate in this telephone hearing, and the failure to call in for the hearing, the Tribunal finds the applicant has abandoned this Application.