Donevan v. University of Windsor, 2014 HRTO 443

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donevan Applicant

-and-

University of Windsor, Wilfred Gallant, Brent Angell, Clayton Smith Respondents

Decision

Adjudicator: David Muir Date: March 28, 2014 Citation: 2014 HRTO 443 Indexed as: Donevan v. University of Windsor

1This Application was filed pursuant to section 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) wherein the applicant alleges that a settlement reached between the parties has been breached.

2In an Interim Decision 2013 HRTO 1882 much of this Application was dismissed because it had no reasonable prospect of success. I did find however that there was a potential violation of the settlement. My conclusions in that regard are set out here:

However it does appear that the respondent University may be in breach of clause 2(2) of the MOS in that the applicant has apparently not been able to make written submissions to the Senate concerning the recommendations of the review report of which there are several. I agree with the respondents that the right is contingent, but does not appear to be contingent on the University placing the report before the Senate, but rather on there being recommendations in the Reviewer’s report.

Given the nature of this potential breach of the MOS the question arises whether or not further evidence would be need to be heard to resolve it. Accordingly the Tribunal directs that the parties make submissions with respect to next steps within 14 days of the date of this Interim Decision.

3In a Case Assessment Direction issued on January 9, 2014 I requested the parties submissions in respect of this remaining issue and made the following further Directions:

1. Within 14 days of the date of this Direction the respondents will deliver and file their submissions in response to the Directions in the Interim Decision. For clarity the respondents should outline their position with respect to the remaining issue: is there a further defence to the allegation that would require evidence or can the issue be dealt with by way of written or oral submissions only;

2. The applicant will deliver and file his responding submissions including any additional submissions the applicant wishes to make with respect to the resolution of this final issue, within 14 days of receiving the respondents’ materials.

4The respondent made a number of submissions in respect of the remaining issue including that there was no need for further evidence and that the remaining issues could be dealt with by written or oral submissions. The respondents also advised that it had decided to discontinue its Policy A.4 – an area of contention in the prior Application and that the applicant was advised of this development. The respondents also advised that the recommendations of the reviewer would be placed before the Universities Senate and the applicant would be provided an opportunity to make written submissions to Senate with respect to policy A.4 “to the extent that such submissions are relevant given the discontinuance of this policy”.

5Finally the respondents also advised that they were agreeable to placing the balance of the recommendations made by the reviewer – that is recommendations made in relation to matters other than Policy A.4. – and “shall advise the applicant once this has been done to afford the applicant the opportunity to make written submissions to Senate accommodation.” The respondents submitted that in the circumstances the remaining issue in dispute in the application be held in abeyance pending the completion of the above-noted items.

6The applicant did not respond to the issues raised in the CAD above and did not respond to the respondents’ submissions. As such it was not clear whether or not the applicant was intending to respond to the proposal of the respondent or not.

7In a further CAD issued on February 11, 2014 the Tribunal made the following further Directions:

1. The applicant is directed to deliver and file within 7 days of the date of this Application his response to the submissions of the respondent in particular addressing whether he intends to take up their proposal to make written submissions to the Senate as proposed by the respondents;

2. If the applicant does take up the respondents’ proposal as set out in their submissions this case will be held in abeyance pending the conclusion of that process and can be reactivated at the request of either party at which point the Tribunal will make further directions with respect to the outstanding issue in the case;

3. If the applicant does not respond to the respondents proposal or does not indicate his willingness to do so within 7 days of this direction, the Tribunal will make further directions with respect to the outstanding issue in the case.

8The applicant did not respond to these Directions.

9On February 26, 2014 the respondents wrote to the Tribunal to advise that they had received no communication from the applicant with respect to these issues. The respondents also argued that given their position summarized above they had complied with their obligations under the MOS and that the Application should be dismissed.

10In a Case Assessment Direction issued to the parties on March 10, 2014 I made the following further Directions:

1. The applicant is directed to deliver and file his submissions in response to the February 11, 2014 CAD and the respondents’ correspondence of February 26, 2014 within 14 days of the date of this Direction, failing which the Tribunal will determine the issues based on the material before it or the Application may be dismissed as abandoned.

11The applicant did not respond to these further Directions and has not communicated to the Tribunal in any way for some time. In the circumstances it appears that the applicant has abandoned this Application and accordingly it is dismissed.