Capocci v. York Catholic District School Board, 2014 HRTO 1460

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Raffaele (Ralph) Capocci

Applicant

-and-

York Catholic District School Board and

York Catholic District School Board – Board of Trustees

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: September 30, 2014

Citation: 2014 HRTO 1460

Indexed as: Capocci v. York Catholic District School Board

APPEARANCES

Raffaele (Ralph) Capocci, Applicant

No one appearing

York Catholic District School Board and York Catholic District School Board – Board of Trustees, Respondents

John-Paul Alexandrowicz, Counsel

1On October 1, 2008, the applicant filed an Application with this Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents had discriminated against him with respect to services and facilities.

2On November 25, 2008, the respondents filed a Response, which denied the allegations of discrimination.

3The hearing of the merits of the Application began on June 25, 2009. Further hearing dates were scheduled for November 23 and December 4, 10 and 18, 2009, but were adjourned because the applicant was unable to attend due to medical issues.

4Between late 2009 and the spring of 2014, the Tribunal did not schedule any further hearing dates because each time the Tribunal asked the applicant to provide an update, he responded that he was still unable to attend due to medical issues.

5On April 17, 2014, the applicant sent the Tribunal an email, which stated that he was now in excellent physical condition, and was ready to proceed with his Application. He also indicated that he was interested in attending a Mediation-Adjudication. Subsequently, the respondents indicated that they were also interested in attending a Mediation-Adjudication.

6On July 8, 2014, the Tribunal issued a Notice of Mediation-Adjudication to the parties, which informed them that the Mediation-Adjudication was scheduled for September 19, 2014 at the hearing centre in Toronto starting at 9:30 a.m.

7On September 19, 2014, the respondents attended the Mediation-Adjudication at the place and time set out in the Notice, but the applicant did not appear or contact the Tribunal to explain his absence.

8At approximately 10:15 a.m., Tribunal staff left a voicemail for the applicant and sent him an email, which confirmed the start time of the Mediation-Adjudication, notified him that the respondents and I were waiting for his arrival, and requested that he respond and advise the Tribunal of his status immediately.

9The applicant did not respond, and at approximately 11:30 a.m., I adjourned the Mediation-Adjudication.

10Eleven days have passed, and the applicant has still not contacted the Tribunal to explain his absence. In the circumstances, the applicant is deemed to have abandoned the Application.

11Furthermore, the 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. This duty is not only in relation to applicants, but also in relation to respondents, who may expend significant resources responding to human rights Applications, and to the public, whose tax dollars fund the Tribunal. In Ouwroulis v. New Locomotion, 2009 HRTO 335, the Tribunal stated at paras. 4-7:

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.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

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. 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.

12The respondents expended significant resources responding to the Application, preparing for and attending the first hearing day in 2009, and preparing for and attending the Mediation-Adjudication. The respondents are unable to recover any costs resulting from this process, including the applicant’s non-attendance at the Mediation-Adjudication, because this Tribunal has no jurisdiction to award costs. See Dunn v. United Transportation Union, Local 104, 2008 HRTO 405. The Tribunal has also expended significant resources processing the Application, scheduling and holding the the first hearing day, scheduling and adjourning further hearing days, issuing Interim Decisions and Case Assessment Directions, and scheduling and having me attend the Mediation-Adjudication. The respondents have also had serious allegations of discrimination hanging over their heads for six years. In these circumstances, it would not be fair, just and expeditious to reschedule the Mediation-Adjudication.

13The Application is dismissed.