Danny Bawn v. Jian Qin Duan o/a Happy Time Restaurant, 2014 HRTO 696

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Danny Bawn

Applicant

-and-

Jian Qin Duan o/a Happy Time Restaurant

Respondent

DECISION

Adjudicator: Mark Hart Date: May 14, 2014 Citation: 2014 HRTO 696 Indexed as: Bawn v. Happy Time Restaurant

APPEARANCES

Danny Bawn, Applicant Zahra Binbrek, Counsel

Jian Qin Duan o/a Happy Time Restaurant, Respondent Vincent Bridgelall, Representative

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 3, 2012.

2On September 30, 2013, the Tribunal issued a Notice of Confirmation of Hearing to the parties confirming that hearing of the Application would take place on May 14, 2014, commencing at 9:30 a.m. at the Tribunal’s hearing centre at 655 Bay Street, 14th Floor, Toronto, Ontario. The Notice was delivered to applicant’s counsel. The applicant, through his counsel, filed his witness statements and the documents upon which he intended to rely at the hearing. Applicant’s counsel states that she spoke to the applicant last week, and he intended to appear at the hearing.

3The applicant was not in attendance at the hearing when it commenced at 9:30 a.m. I initially stood the matter down until 10:00 a.m. to afford applicant’s counsel an opportunity to try to reach her client. When I resumed the hearing at 10:00 a.m., I was advised that applicant’s counsel had left voicemail messages for her client, but had been unable to reach him directly. She had no further information to explain the applicant’s failure to appear.

4In the circumstances, I stood the matter down for a further half an hour, until 10:30 a.m., in order to afford the applicant more time to appear. In the meantime, I confirmed with Tribunal staff that no communication had been received from the applicant to explain his failure to appear. When the hearing resumed at 10:30 a.m., the applicant still had not appeared.

5I invited submissions from applicant’s counsel as to whether I should dismiss the Application as abandoned. She stated that, given that the applicant had filed his pre-hearing materials and had indicated his intention to attend the hearing as late as last week, something serious must have happened to prevent his appearance at the hearing. She requested that the hearing be adjourned for a short period of time to allow her the opportunity to find out why the applicant had failed to attend. Counsel also raised the fact that the applicant does not have a mobile telephone, so that if something occurred on his way to the hearing to cause him to be delayed, he would have no way of reaching counsel or the Tribunal.

6I accept counsel’s submission that it is unusual for a party to fail to appear at a hearing after filing his pre-hearing materials and indicating to counsel an intention to appear as recently as last week. However, that is not sufficient to account not only for his failure to appear at the hearing, but further for his failure to communicate either with counsel or the Tribunal to provide an explanation. While I appreciate that the applicant may not have access to a mobile telephone, in my view affording the applicant an additional hour to appear at the hearing is more than sufficient to account for an delays in getting to the Hearing Centre, particularly as the applicant resides in Parkdale in Toronto.

7A hearing is a legal proceeding which carries with it serious consequences for all parties involved. The respondent had retained a representative who was in attendance at the hearing, and the respondent also had arranged for the attendance of its five witnesses. Substantial expense and inconvenience were caused to the respondent and its witnesses as a result of the applicant’s failure to appear. All parties are entitled to an expeditious resolution of matters before this Tribunal. While there may be some explanation for the applicant’s failure to appear, at the moment any such explanation is entirely speculative. In my view, if there are exceptional circumstances that explain the applicant’s failure to appear at the hearing and failure to communicate with counsel or the Tribunal regarding his failure to appear, then any such circumstances can appropriately be raised on a Request for Reconsideration. In the meantime, the respondent, who appeared at the hearing and was ready to proceed, is entitled to have this matter disposed of.

8As I am satisfied that the applicant had notice of the hearing and failed to appear without communication or explanation, I dismissed the Application on the basis that the applicant is deemed to have abandoned the Application.