Lovrecich v. Toronto Catholic District School Board, 2015 HRTO 1292

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eliza Lovrecich Applicant

-and-

Toronto Catholic District School Board, Desi Smulan, Rose Balmbra, and Sherilyn Koenig Respondents

DECISION

Adjudicator: Ken Bhattacharjee Date: September 30, 2015 Citation: 2015 HRTO 1292 Indexed as: Lovrecich v. Toronto Catholic District School

APPEARANCES

Eliza Lovrecich, Applicant No one appearing

Toronto Catholic District School Board, Desi Smulan and Rose Balmbra, Respondents Paul Matthews, Counsel

Sherilyn Koenig, Respondent Jerry Raso, Counsel

Introduction

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), but failed to appear for a summary hearing. I issued an oral decision dismissing her Application with written reasons to follow. The following are my reasons.

BACKGROUND

2On July 2, 2014, the applicant filed an Application against the Toronto Catholic District School Board (the “organization respondent”), Desi Smulan (the “respondent Smulan”), Rose Balmbra (the “respondent Balmbra”), and Sherilyn Koenig (the “respondent Koenig”) with the Tribunal.

3On September 18, 2014, the organization respondent, the respondent Smulan, and the respondent Balmbra filed a Response. On September 19, 2014, the respondent Koenig filed a Response and a Request for Summary Hearing, which requested that the Application against her be dismissed on a preliminary basis because it has no reasonable prospect of success.

4On October 1, 2014, the applicant filed a Reply and a Response to the respondent Koenig’s Request for Summary Hearing, which opposed dismissing her Application on a preliminary basis.

5On March 2, 2015, the parties attended a mediation at the Tribunal, which did not result in a settlement of the case.

6On March 16, 2015, the Tribunal issued a Case Assessment Direction, which granted the respondent Koenig’s Request for Summary Hearing.

7On August 7, 2015, the applicant sent the Tribunal’s Registrar an email, which stated that she was available to attend the summary hearing on September 22, 23, 24, 25, or 28, 2015.

8On August 11, 2015, the Registrar sent the applicant and the respondents an email, which notified them that the summary hearing would take place on September 28, 2015, and that a hard copy of the Notice of Summary Hearing would follow by mail.

9On August 11, 2015, the Tribunal mailed a Notice of Summary Hearing to the parties, which informed them that the hearing was scheduled for September 28, 2015 from 9:30 AM to 12:30 PM. The Notice directed the parties to call a phone number and enter a conference identification number, both of which were provided in the Notice. The Notice also warned the parties that if they failed to attend the hearing, the Tribunal may take a number of steps, including dismissing the Application as abandoned if the applicant failed to attend, or take any other action that the Tribunal considered appropriate.

10On September 28, 2015, the respondents called into the conference call at the time that was set out in the Notice of Summary Hearing, but the applicant did not. The Tribunal’s standard practice where a party does not attend is to confirm in the Tribunal’s file that the Hearing Notice was sent to the missing party, and wait half an hour. If the party is still not present, the Tribunal proceeds in the party’s absence without further notice to that party. Where the applicant is not present, this will generally lead to the dismissal of the Application. See Edward v. Moda at Home, 2009 HRTO 568 at para. 2.

11I confirmed in the file that the applicant was aware of the summary hearing, and after waiting for half an hour, I dismissed the Application against all the respondents.

ANALYSIS

12I am satisfied that the applicant had notice of the summary hearing. She commenced a legal proceeding when she filed her Application with the Tribunal, and she had a responsibility to attend the hearing and make submissions. In view of the fact that she was aware of the hearing and did not attend, she is deemed to have abandoned the Application.

13Furthermore, 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.

14The respondents expended significant resources responding to the Application, participating in a mediation, and preparing for and attending the summary hearing. The respondents are unable to recover any costs resulting from this process, including the applicant’s non-attendance at the hearing, because this Tribunal has no authority 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 a mediation, and scheduling and holding a hearing. In these circumstances, it would not be fair, just and expeditious to allow the Application to continue.

ORDER

15The Application is dismissed.