Neary v. 1710700 Ontario Inc. o/a Ristorante Avanti, 2015 HRTO 1277

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Melissa Neary

Applicant

-and-

1710700 Ontario Inc. o/a Ristorante Avanti and Anthony Ferriolo

Respondents

DECISION

Adjudicator: Mark Hart

Date: September 24, 2015

Citation: 2015 HRTO 1277

Indexed as: Neary v. 1710700 Ontario Inc. o/a Ristorante Avanti

1This is an Application dated September 6, 2013, alleging sexual harassment and sexual solicitations with respect to employment, discrimination with respect to employment because of sex and marital status, and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Application originally was scheduled to proceed to a hearing in Windsor on August 5 to 7, 2014. However, by that time the applicant had moved to the United States and due to legal issues that arose for her there, she was unable to cross the border to attend the hearing. As a result, those hearing dates were adjourned.

3The hearing was next scheduled to proceed on January 20 to 22, 2015, by which time it was anticipated that the legal impediment to the applicant’s ability to travel to Canada would be removed. However, the Tribunal received notice from the applicant that the legal impediment remained in place at that time. Accordingly, those hearing dates also were adjourned.

4The Tribunal thereafter sought to re-schedule the hearing in consultation with the parties. Up until February 19, 2015, the applicant had been represented by legal counsel, and all communications regarding the matter were sent to the applicant through her counsel. However, by e-mail correspondence dated February 19, 2015, applicant’s former counsel notified the Tribunal and the respondents that he would not be representing the applicant at the hearing and that the applicant would deal with the scheduling of new hearing dates directly. Apart from an e-mail address for the applicant appearing on counsel’s e-mail correspondence, applicant’s former counsel did not provide any current or updated contact information for the applicant, although none was specifically requested by the Tribunal.

5The Tribunal then sought to ascertain the applicant’s availability for the hearing directly. By e-mail correspondence dated February 26, 2015, the applicant stated that she and her witnesses were available throughout all of September 2015. On this basis and in view of the respondents’ availability, a Notice of Rescheduled Hearing dated March 3, 2015 was sent out to the parties, notifying the parties that the hearing would proceed on September 28 to 30, 2015. The September 30, 2015 hearing date was subsequently cancelled due to Tribunal resource issues, but the hearing was still scheduled to proceed on September 28 and 29, 2015.

6Unfortunately, the Notice of Rescheduled Hearing was sent out to the parties only by mail, on the basis of the contact information on file with the Tribunal. The only mailing address the Tribunal had for the applicant was an address in Windsor which appeared on the Application as filed. Despite the fact that the Tribunal was aware that the applicant had since moved to the United States, the Notice of Rescheduled Hearing was sent to her only at this address in Windsor.

7This was not discovered until I was reviewing the file in preparation for the hearing in the latter part of August 2015. I immediately issued a Case Assessment Direction (“CAD”) dated August 25, 2015 drawing attention to this problem. I directed that the CAD be sent to the applicant by e-mail at the address by which she had last communicated with the Tribunal in late February 2015, as well as by mail to the address in Windsor from the Application in the event that mail was being forwarded to her. Also, in reviewing the file, I came across certain documents filed by the applicant which appeared to contain an address for her in the United States. Accordingly, I also directed that the CAD be sent to the applicant at that address in the United States.

8In the CAD, I directed the applicant to provide her current mailing address and to confirm her intention to appear for the hearing on the scheduled dates on September 28 to 30, 2015 (the September 30 date had not yet been cancelled). I directed her to do this within 14 calendar days of the date of the CAD, or in other words by September 8, 2015. The applicant was expressly notified in the CAD that if she failed to do so, the Tribunal may decide to dismiss her Application as abandoned and cancel the scheduled hearing dates.

9No response to the CAD was received from the applicant by September 8, 2015, or to date. Counsel for the respondents wrote to the Tribunal on September 11, 2015, to inquire whether the Tribunal had heard from the applicant. Counsel for the respondent wrote again on September 17, 2015 to repeat his inquiry.

10On Friday, September 18, 2015, at 1:45 p.m., the Tribunal called applicant’s former counsel by phone and sent him an e-mail asking him to confirm the applicant’s last known address in the United States. He was asked to do so by 5:00 p.m. that day. No such information was provided by applicant’s former counsel by that deadline or to date.

11Also on Friday, September 18, 2015, the Tribunal sent e-mail correspondence to the parties, including to the applicant at the e-mail address by which she had last corresponded with the Tribunal, to advise that the Tribunal was currently in the process of trying to satisfy itself that the applicant had received proper notice of the hearing and the direction given in the Tribunal’s CAD. The Tribunal stated that it expected to be in a position to advise the parties as to the status of this matter in the near future.

12The respondents’ counsel then wrote to the Tribunal by letter dated September 21, 2015 to express his expectation that the Tribunal would have made a decision whether to dismiss the Application as abandoned in a timely manner, and to request that the hearing be adjourned if the Application was not dismissed. Understandably in the circumstances, counsel had not subjected his clients to the expense of preparing for the hearing (now one week away) in light of the uncertainty as to whether or not it would proceed.

13On September 21, 2015, at 4:22 p.m., having heard nothing from the applicant or her former counsel, I directed the Registrar to send out a letter to the parties indicating that the Tribunal had not received any confirmation from the applicant of her intention to attend the hearing as directed in the CAD. In the circumstances, the parties were notified that the Tribunal had determined that the Application should be dismissed as abandoned and the hearing dates cancelled, and that a decision would issue in due course.

14I appreciate that the Notice of Rescheduled Hearing dated March 3, 2015 was sent to the applicant at the address in Windsor that she provided as her contact address on the face of the Application, at a point where the Tribunal was aware that she had moved to the United States. However, this was noted and rectified through my CAD dated August 25, 2015, issued over a month before the hearing was scheduled to commence. My CAD was sent to the applicant at the e-mail address by which she had last directly corresponded with the Tribunal in February 2015, and by mail to an address for her in the United States that appeared on documents filed by her with the Tribunal. The Tribunal also endeavoured to obtain current contact information for the applicant from her former counsel, to no avail.

15Pursuant to Rule 1.13 of the Tribunal’s Rules of Procedure, it is the applicant’s obligation to advise the Tribunal and the respondents of any change to her mailing or e-mail addresses as set out in the Application. The applicant failed to do so.

16Nonetheless, the CAD which set out the dates for the hearing was sent to the applicant by e-mail to the last e-mail address by which she had corresponded with the Tribunal and which had been provided by her former counsel. The Tribunal previously had sent correspondence to the applicant at this e-mail address in the context of re-scheduling the hearing dates, which she received and responded to. The e-mail sending the CAD to the applicant was not returned as undeliverable. As a result, I am satisfied that the applicant received the CAD dated August 25, 2015, and thereby received proper notice of the hearing.

17By filing her Application, the applicant has initiated a legal proceeding against the respondents. It is her responsibility to remain actively involved in this legal proceeding, and to fulfil her obligations under this Tribunal’s Rules. The applicant was directed to confirm her current address and her intention to attend the hearing, and was further warned of the consequences of her failure to comply with this direction. Despite the fact that the deadline for her to do so expired by the terms of the CAD on September 8, 2015, the Tribunal waited an additional 13 days before deciding to dismiss the Application. During this entire period, the applicant has failed to confirm that she intended to appear for the hearing, and has failed even to communicate with the Tribunal in response to the CAD. Indeed, the applicant has not communicated with the Tribunal at all since February 26, 2015, despite knowing at that time that the Tribunal was in the process of scheduling dates for the hearing in this matter, and despite her expressed desire for the hearing to proceed in September 2015.

18In these circumstances, it appears that the applicant has abandoned the Application. Accordingly, the Application is dismissed as abandoned.

ORDER

19The Application is dismissed as abandoned and the currently scheduled hearing dates are cancelled.