Cabral v. TJX Canada (Winners Merchants Inc.), 2015 HRTO 1389

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marcio Cabral Applicant

-and-

TJX Canada (Winners Merchants Inc.) Respondent

DECISION

Adjudicator: Ken Bhattacharjee Date: October 19, 2015 Citation: 2015 HRTO 1389 Indexed as: Cabral v. TJX Canada (Winners Merchants Inc.)

APPEARANCES

Marcio Cabral, Applicant No one appearing

TJX Canada (Winners Merchants Inc.), Respondent Robert W. Little, 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 the hearing of his Application. I issued an oral decision dismissing his Application with written reasons to follow. The following are my reasons.

BACKGROUND

2On August 26, 2014, the applicant filed an Application with the Tribunal, and on October 3, 2014, the respondent filed a Response.

3On November 18, 2014, the applicant filed a Request for an Order During Proceedings, which requested that his Application be amended to add a further alleged incident of discrimination.

4On January 27, 2015, the parties attended a mediation at the Tribunal, which did not result in a settlement of the case.

5On February 13, 2015, the Tribunal issued a Case Assessment Direction ("CAD"), which granted the applicant's request to amend his Application, and directed the respondent to file an Amended Response to the Application.

6On March 9, 2015, the respondent filed an amended Response.

7On April 15, 2015, the Tribunal issued a Notice of Rescheduled Hearing, which informed the parties that the hearing of the merits of the Application was scheduled for October 2, 2015. The Notice also set out the Tribunal's Rules of Procedure with respect to disclosure of documents and witnesses. Rule 16 requires each party to deliver to every other party and file with the Tribunal a list and copy of all documents that it intends to rely on no later than 45 days prior to the first scheduled day of hearing. Rule 17 requires each party to deliver to every other party and file with the Tribunal a witness list and brief statement summarizing the expected evidence of each witness no later than 45 days prior to the first scheduled day of hearing. Neither party complied with these Rules.

8On August 25, 2015, the Tribunal issued a CAD, which directed the parties to comply with Rules 16 and 17, and specifically warned the applicant that if he failed to do so, the Tribunal would likely dismiss his Application as abandoned. In response, the respondent filed a witness statement and documents on August 27, 2015, and the applicant filed the name of a witness and documents on September 9 and 10, 2015.

9On October 2, 2015, the respondent attended the hearing at the place and time that was set out in the Notice of Rescheduled Hearing, but the applicant did not appear. I commenced the hearing at 10:00 AM after confirming with Tribunal staff that the applicant had not contacted the Tribunal to explain his absence, and then dismissed the Application.

ANALYSIS

10In view of the fact that the Notice of Rescheduled Hearing and subsequent CAD were sent to the mailing address that the applicant specified in his Application, and he responded to the CAD by filing the name of a witness and documents, I am satisfied that he was aware of the date, location and time of the hearing of his Application, but decided not to attend.

11The applicant commenced a legal proceeding when he filed his Application with the Tribunal. It is the applicant's responsibility to attend the hearing and provide evidence in support of the allegations raised in the Application. In the absence of such evidence, the Tribunal is unable to proceed with the Application and there is no onus or responsibility on the respondent to provide evidence in response to allegations.

12Furthermore, 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. 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.

13The respondent expended significant resources responding to the Application, attending a mediation, and preparing for and attending the hearing. The respondent is unable to recover any costs resulting from this process, including the applicant's non-attendance at the hearing, because the 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 the mediation, and scheduling and holding the hearing. In these circumstances, it would not be fair, just and expeditious to allow the Application to continue.

ORDER

14The Application is dismissed.