Campbell v. SST Group of Construction Companies Ltd., 2015 HRTO 1605

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dean Campbell

Applicant

-and-

SST Group of Construction Companies Ltd. and Mario Guerrero

Respondents

-and-

Operative Plasterers’ and Cement Masons’ International Association of the United States and Canada, Local 598

Intervenor

DECISION

Adjudicator: Ken Bhattacharjee Date: November 26, 2015 Citation: 2015 HRTO 1605 Indexed as: Campbell v. SST Group of Construction Companies Ltd.

APPEARANCES

Dean Campbell, Applicant No one appearing

SST Group of Construction Companies Ltd. and Mario Guerrero, Respondents Kelsey Orth, Counsel

Operative Plasterers’ and Cement Masons’ International Association of the United States and Canada, Local 598, Intervenor Michael McCreary, 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 third hearing day of his Application. I issued an oral decision dismissing his Application with written reasons to follow. The following are my reasons.

BACKGROUND

2The applicant filed an Application with the Tribunal on February 25, 2014; the respondents filed a Response on April 17, 2014; and Operative Plasterers’ and Cement Masons’ International Association of the United States and Canada, Local 598 (the “intervenor”) filed a Request to Intervene on April 11, 2014. The Tribunal granted the union’s Request to Intervene.

3On September 30, 2014, the parties and the intervenor attended a mediation at the Tribunal, which did not result in a settlement of the case.

4The first two days of the hearing of the merits of the Application took place on April 20 and 21, 2015.

5Following the first two hearing days, the parties and the intervenor consulted with each other about their availability for three further hearing days, and on June 4, 2015, the respondents’ counsel sent the Tribunal an email, which was copied to the applicant’s representative and the intervenor’s counsel, which stated that the parties and the intervenor were available on November 3, 4 and 27, 2015.

6On June 8, 2015, the Tribunal issued a Notice of Hearing, which informed the parties and the intervenor that the hearing of the merits of the Application was scheduled to continue on November 3, 4 and 27, 2015. The Notice was not returned to the Tribunal as undeliverable.

7On November 3, 2015, the respondents and the intervenor attended the hearing at the place and time that was set out in the Notice of 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.

8The respondents stated that they have incurred approximately $30,000 in costs defending against the Application, and requested that the Tribunal award costs against the applicant. The intervenor supported the respondents’ request for some award of costs against the applicant.

ANALYSIS

9Rule A9.2 of the Social Justice Tribunals Ontario Common Rules provides that representatives are responsible for conveying tribunal communications and directions to their client. In view of the fact that the applicant’s representative was involved in the consultation about availability for further hearing days, the respondents’ counsel copied him on a letter which stated that the parties and the intervenor were available on November 3, 4 and 27, 2015, and the Tribunal sent the applicant’s representative a Notice of Hearing confirming the continuation dates of the hearing and the Notice was not returned to the Tribunal as undeliverable, I am satisfied that the applicant was aware of the date, location and time of the hearing of his Application, but decided not to attend. In the circumstances, the applicant is deemed to have abandoned the Application.

10Furthermore, 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.

11The respondents and the intervenor expended significant resources responding to the Application, attending a mediation, and preparing for and attending the hearing. The respondents and the intervenor are 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.

12I have seriously considered the respondents’ and the intervenor’s request for an award of costs against the applicant, but as mentioned in the preceding paragraph, the Tribunal has no authority to award costs. That said, if the applicant files a Request for Reconsideration of the Decision to dismiss his Application, depending on the circumstances, whether or not the applicant has voluntarily reimbursed the respondents and the intervenor for their costs related to the missed hearing day may be a factor that I would take into consideration. I would recommend that the respondents and the intervenor send the applicant’s representative a bill for all their costs related to the missed hearing day.

ORDER

13The Application is dismissed.