Taucar v. University of Western Ontario, 2015 HRTO 629

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Haruyo Taucar Applicant

-and-

The University of Western Ontario, Donna Pennee and Lisa Ann Korab Respondents

B E T W E E N:

Haruyo Taucar Applicant

-and-

Western University Respondent

DECISION

Adjudicator: Mark Hart Date: May 14, 2015 Citation: 2015 HRTO 629 Indexed as: Taucar v. University of Western Ontario

APPEARANCES

Haruyo Taucar, Applicant No one appearing

The University of Western Ontario, Western University, Donna Pennee and Lisa Ann Korab, Respondents Catherine Peters and Sean Porter, Counsel

1These are two Applications alleging violations of the applicant’s rights under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The first Application (2010-05429-I) is dated April 17, 2010, and alleges discrimination with respect to employment because of disability and reprisal (the “original Application”). The original Application was the subject of an Interim Decision of this Tribunal dated October 11, 2013 (2013 HRTO 1725, upheld on reconsideration at 2014 HRTO 63), in which certain allegations were dismissed. The remaining allegations relate to an alleged failure to adequately accommodate the applicant’s needs arising from a disability and an alleged disability-related comment.

3The other Application (2013-16300-I) is dated December 4, 2013, and alleges reprisal in relation to the failure to hire the applicant to teach courses for the 2013-14 academic year (the “reprisal Application”).

4The hearing in this matter was scheduled to commence on May 4, 2015, in Toronto and beginning at noon as an accommodation for the applicant. Neither the applicant nor her legal counsel appeared at the hearing, despite having notice of the hearing date. After hearing the respondents’ submissions as to whether the Applications should be dismissed due to the applicant’s failure to appear and having taken some time to consider the matter, I directed the Tribunal to send a letter to the parties advising them that the Applications had been dismissed due to the applicant’s failure to appear, that the remaining scheduled hearing dates were cancelled, and that reasons for this decision would be issued in due course. These are those reasons.

Background

5The hearing in this matter originally was scheduled to proceed on May 7 and 8, 2015, in London, by Notice of Hearing dated December 9, 2014. The applicant responded to indicate that she was not available for the hearing on those dates, and proposed alternate dates in April 2015. The applicant also requested that the hearing be moved to Toronto and start at noon as an accommodation for her disability. After much correspondence with the parties, the applicant ultimately confirmed by letter dated February 7, 2015 that she was now available for the originally scheduled hearing dates of May 7 and 8, 2015. Unfortunately, by that time, the Tribunal was no longer available for the hearing of this matter on May 8, 2015. However, by Interim Decision dated February 12, 2015 (2015 HRTO 197), the Tribunal granted the accommodations requested by the applicant and ordered that the hearing would proceed on May 7, 2015, in Toronto, commencing at noon. The Tribunal also canvassed the parties for additional dates to complete the hearing, as it was clear that additional dates would be required.

6By e-mail correspondence dated February 20, 2015, applicant counsel confirmed that the applicant was available for additional hearing dates on May 4, 5 and 6, 2015. The respondents advised that, of those dates, they were only available to proceed on May 4, 2015. Accordingly, by Interim Decision dated March 4, 2015 (2015 HRTO 257), it was ordered that the hearing would proceed on May 4 and 7, 2015, in Toronto, commencing at noon each day. This was confirmed by Notice of Hearing dated March 4, 2015. The Notice of Hearing included the following statement: “If you do not attend the hearing after receiving proper notice, the HRTO may proceed in your absence (if you are a respondent or intervener) or dismiss the Application as abandoned (if you are the applicant).”

7After further correspondence with the parties, additional dates were set to complete the hearing in this matter for June 10, 11, 12 and 30, 2015. The hearing on these later dates was scheduled to take place in London, commencing at 10:00 a.m. each day, as the applicant advised that she would be appearing on these dates through counsel and was not expected to testify on these dates, such that she did not require accommodation. These additional hearing dates were confirmed by Notice of Hearing dated March 26, 2015.

8Following the confirmation of the May 4 and 7, 2015 hearing dates, the applicant made a number of requests for the adjournment of the hearing in this matter. In particular, by correspondence dated March 19, 2015, applicant counsel requested a deferral of the hearing pending an anticipated application for judicial review primarily on the basis of an allegation of bias against me. By this letter, the applicant also requested an adjournment on the basis of her medical condition, which it was stated would be aggravated if she were required to appear before an adjudicator whom she perceived to be biased or if she were required to testify twice if this hearing were set aside on judicial review and a new hearing needed to be undertaken.

9These requests for deferral or adjournment of the scheduled hearing dates were denied by Interim Decision dated March 25, 2015 (2015 HRTO 380). In brief, I held that the applicant’s allegations of bias had already been considered and rejected on several previous occasions, such that no deferral was warranted for the purpose of the applicant initiating a judicial review application to pursue these allegations. I further held that an adjournment due to the applicant’s subjective perception that I am biased was not a proper basis for an adjournment and that the prospect of the applicant having to testify twice was speculative.

10The applicant then commenced an application for judicial review on March 30, 2015, seeking to have the Tribunal’s decisions in these matters overturned and to have me removed as the adjudicator based upon a reasonable apprehension of bias. By Request for Order dated April 1, 2015, the applicant sought deferral of the proceeding in this matter pending the determination of the judicial review application. This request was denied by Interim Decision dated April 23, 2015 (2015 HRTO 515).

11In addition, by letter dated March 31, 2015, the applicant also requested the adjournment of the hearing dates for medical reasons on the basis of a brief handwritten note from her doctor dated March 26, 2015. This request also was denied by the Interim Decision dated April 23, 2015, on the basis that the adjournment was opposed by the respondents and that the applicant refused to make her doctor available to be questioned by the Tribunal and the respondents regarding the medical foundation for his note.

12Despite having time to do so in advance of the initial May 4, 2015 hearing date, the applicant did not bring a motion in court for a stay of the hearing pending determination of the judicial review application. Instead, by letter dated May 1, 2015, and sent to the Tribunal and the respondents on Saturday, May 2, 2015 at 12:19 p.m., applicant’s counsel wrote to advise that the applicant would not be attending the hearing to give evidence but instead would rely upon the documents she had submitted for the purpose of the hearing. The reason for the applicant refusing to attend the hearing was stated to be the judicial review application, which could result in the Tribunal’s previous decisions in this matter being overturned, and her medical condition, including that her condition would be aggravated by having to appear before someone she perceived to be biased or by having to testify twice in the same proceeding. Applicant counsel advised that he too would not be attending the hearing on May 4 and 7, 2015, given that these days had been scheduled to hear the applicant’s evidence.

13Counsel for the respondents replied by e-mail correspondence dated May 2, 2015, and sent at 3:03 p.m., objecting to the adjournment or cancellation of the May 4 and 7, 2015 hearing dates and objecting to the applicant’s proposed manner of presenting her case. The respondents took the position that the applicant should be required to attend the hearing to provide oral evidence in support of her allegations and to submit to cross-examination. The respondents put the applicant on notice that if she failed to attend the hearing, they would request that the Applications be dismissed.

14Applicant counsel replied by letter dated May 2, 2015, and sent at 5:21 p.m., taking the position that it was the applicant’s right to decide how to present her case and that she had decided to rely solely upon the documentary evidence she had submitted in support of her allegations. As a result, the applicant continued to take the position that there was no need for her or her counsel to appear for the hearing dates scheduled for May 4 and 7, 2015.

15This exchange of correspondence came to my attention early on the morning of Monday, May 4, 2015, the day the hearing was scheduled to commence. I immediately directed the Tribunal to send e-mail correspondence to the parties indicating that the parties, including the applicant, were expected to attend the hearing commencing at 12:00 noon that day and that the applicant should be prepared to take the stand to provide her testimony in support of her case. The Tribunal’s correspondence further stated that, if the applicant failed to attend the hearing that day, the Tribunal would consider the respondents' request for the Applications to be dismissed. This e-mail correspondence was sent out to the parties at 9:32 a.m. on Monday, May 4, 2015.

16In response, the Tribunal received the following auto-reply message from applicant counsel: “I will be out of the office from May 3, 2015 until May 16, 2015. It is anticipated that I will not be in a position to receive or reply to correspondence until my return to the office.”

17The hearing in this matter commenced as scheduled at noon on May 4, 2015. Respondent counsel were in attendance together with a University representative. Neither the applicant nor her counsel was present. The Tribunal’s general practice where one of the parties fails to appear at the time scheduled to commence a hearing is to stand the matter down for half an hour in order to give the missing party an opportunity to appear. In the circumstances of this case, I stood the matter down for one full hour, until 1:00 p.m., in order to give the applicant or her counsel an opportunity to appear. They failed to do so. Accordingly, I proceeded to hear the respondents’ submissions in support of the dismissal of the Applications due to the applicant’s failure to appear for the hearing.

Reasons for dismissal

Abuse of Process

18A proceeding before this Tribunal is a legal proceeding, in which all parties are expected to participate and abide by the Tribunal’s Rules, directions and orders. The failure to do so without reasonable excuse will result in legal consequences. There is no question that the applicant had notice of the hearing date scheduled for May 4, 2015. Indeed, she confirmed that she was available to attend a hearing on that date prior to the date being set. There also is no question that the applicant was aware of the potential consequences of her failure to attend the hearing on May 4, 2015. These potential consequences, namely the dismissal of her Applications, expressly had been set out in the Notice of Hearing.

19The issue for me is whether the failure of the applicant or her counsel to attend the hearing is reasonably excused on the basis of her decision not to testify before this Tribunal but instead rely simply upon the documents she had submitted. I agree with applicant counsel that the applicant has the right to decide how to present her case, and that it is open to her to decide whether or not she wants to testify in support of her allegations. There also is no question that the May 4 and 7, 2015 hearing dates were scheduled in Toronto to commence at noon each day as an accommodation for the applicant, on the understanding that she would be testifying and giving her evidence on these two days.

20That, however, does not mean that the applicant’s decision not to testify at the hearing automatically results in these hearing dates being cancelled, thereby relieving the applicant or her counsel from their obligation to appear. The scheduling of hearing dates at this Tribunal, as with the courts or any other tribunal, represents an allocation of scarce Tribunal resources to a particular matter in lieu of the allocation of these resources to other pending matters. Similarly, for the parties, the scheduling of hearing dates represents an allocation of scarce resources of legal counsel, the parties themselves and their witnesses in lieu of the allocation of this time to their other work or life activities. It does not fall to the applicant to purport to unilaterally cancel long-scheduled hearing dates and thereby waste the scarce time and resources of the Tribunal and the respondents on the basis of her decision not to testify, communicated to the Tribunal and the respondents on the weekend before the commencement of the hearing on the following Monday.

21Just because the applicant made a last-minute decision not to testify at the hearing does not mean that the hearing could not have proceeded on May 4, 2015. For example, I had planned to hear opening statements from the parties, including seeking clarification as to the remaining issues and the precise bases upon which the applicant was seeking a finding from this Tribunal that her rights under the Code had been violated. In addition, on the basis of the witness statements and documents submitted by the parties, it appeared to me that there may be a lot of material that was not relevant to the issues before me for determination, and I had intended to invite submissions from the parties regarding the relevance of much of this material. In addition, it is clear from the correspondence filed by applicant counsel that the applicant objects to certain material filed by the respondents, which is an issue upon which I could have heard submissions from the parties and issued a ruling. None of this could be accomplished due to the applicant’s and her counsel’s failure to appear.

22Further, I had previously communicated to the parties that it was my practice to mark the documents submitted by the parties for the hearing as exhibits at the outset of the hearing, subject to any objection raised by the opposing party to any specific document, on the basis that the documents were authentic, in that they were made or sent on the date indicated, from and to the person indicated, and say what they say. I do this in an effort to expedite hearings by avoiding, as much as possible, the necessity for individual documents to be authenticated by a witness and marked separately as exhibits when there is no real issue as to the document’s authenticity. I also generally advise parties that I do not need any witness to read to me from the documents, as I will have already read all of the documents by the time of the hearing. I shared my general approach to documents with the parties in the instant case.

23But to date, I have adopted this practice in situations where the documents submitted by any individual party will be supplemented by witness evidence. In the over seven years that I have been a Vice-Chair at this Tribunal, I do not recall encountering a situation where I have been invited to mark documents submitted by a party as an exhibit to the hearing where that party does not intend to call any witness evidence. It is possible that there may be cases where such a procedure may not be inappropriate, for example where a party’s case is entirely based upon documents and that party has nothing to add by way of witness evidence. But at the very least, I would need to hear submissions from the parties and make a ruling as to the propriety of proceeding in such an unusual manner before simply accepting and marking documents as exhibits in such circumstances. Once again, this could not be done due to the applicant’s and her counsel’s failure to appear.

24Still further, what I understand to be the effect of how the applicant proposed to present her case is that she intended to rely upon the documents submitted as the entirety of her case in chief. In essence, the applicant intended to submit her documents and then close her case in chief without testifying. If the applicant had appeared at the hearing and proceeded in this manner, this would have resulted either in a non-suit motion by the respondents on the basis that the applicant had not established a prima facie case in support of her allegations solely based on the submitted documents, or an exercise of this Tribunal’s discretion to request submissions from the parties as to whether the Applications have any reasonable prospect of success based solely upon the submitted documents. This is a potential use of the scheduled time on May 4, 2015 that also was frustrated by the applicant’s and her counsel’s unilateral decision not to appear.

25Finally, given that the applicant intended to close her case in chief on the basis of the documents she had submitted, another potential use of time on May 4, 2015 could have been to proceed with the respondents’ case. At least one of the respondents’ proposed witnesses was in attendance at the hearing on May 4, 2015, and potentially could have testified had the applicant and her counsel chosen to appear.

26The point is that, just because the applicant made a last-minute decision not to testify on her own behalf, does not give her or her counsel the unilateral ability to waste the time and resources of the Tribunal and the other parties that have been committed to this long-scheduled hearing date, particularly given that there are a myriad of other necessary things that could have been accomplished had the applicant fulfilled her obligation to appear at the hearing of the legal proceeding that she herself decided to commence. Were I to allow the applicant to make such a unilateral decision, this would mean that all of the things that could have been accomplished on May 4, 2015 would necessarily have been done on other scheduled hearing dates, thereby unnecessarily using even more scarce and valuable time and resources of this Tribunal and the respondents.

27In my view, the actions of the applicant and her counsel in unilaterally deciding not to appear for the hearing on May 4, 2015, on the basis of the applicant’s decision not to testify, in communicating this decision to the Tribunal and the respondents on the weekend prior to the Monday when the hearing was scheduled to commence, and then by counsel apparently absenting himself from his office at a time when he was scheduled to appear at the hearing on the applicant’s behalf, amounts to a gross waste of this Tribunal’s and the respondents’ valuable time and resources and represents an abuse of this Tribunal’s process. On this basis alone, in my view, the dismissal of these Applications is justified and appropriate.

28Moreover, even if I were to have accepted the applicant’s proposed manner of presenting her case after hearing and considering the parties’ submissions on that issue, this would still raise the issue as to whether the applicant’s allegations and the remedies she seeks are capable of proof solely on the basis of the documents submitted. Indeed, at the hearing on May 4, 2015, I expressly requested the respondents’ submissions on this point. While neither the applicant nor her counsel appeared and so were not available to make submissions, they cannot be heard to complain given that they were aware of the respondents’ objection to the applicant’s proposed manner of proceeding and were on notice that the respondents intended to request that the Applications be dismissed if the applicant failed to appear or testify. Further, applicant’s counsel cannot be heard to complain about being away from his office when, on the first business day following communication of the applicant’s unilateral decision not to testify or appear at the hearing, the Tribunal gave the applicant express notice that, if the applicant failed to appear or testify, the Tribunal would entertain the respondents’ request for dismissal of the Applications. Both the applicant and her counsel had long been aware of the hearing date scheduled for May 4, 2015, and it is not open to applicant counsel simply to set an auto-reply message on his e-mail stating that he now will not be available on dates that he previously had agreed and committed to being available and when he knew that the hearing was scheduled to proceed.

Documents Alone are Insufficient Evidence

29Accepting a document as authentic does not mean the acceptance of the truth of the contents of the document, unless there is some established exception such as the business records rule. For example, as in the instant case, where a letter sent by applicant counsel raises certain allegations, accepting that letter as authentic means that it was sent by applicant counsel on the date indicated and to the persons indicated and says what it says. If the issue is whether the persons to whom the letter was sent had notice that these allegations had been raised, accepting the letter as authentic would be sufficient to establish this point. But accepting the letter as authentic does not establish the truth of the allegations contained in the letter. To take just one specific example, one of the issues in this proceeding is whether one of the personal respondents referred to the applicant as “paranoid”. This allegation is raised by applicant counsel in a letter sent to the personal respondent who is alleged to have made the comment. Given that an essential factual issue before me is whether or not this comment in fact was made, the letter from applicant counsel alone, even if accepted as authentic, is not sufficient to establish that fact in the absence of testimony from a witness to whom the comment was made.

30On the basis of the Applications before me and in light of the various Interim Decisions dismissing or striking various portions of these Applications, my understanding of the remaining issues before me for determination in this proceeding are as follows:

a. that the applicant experienced discrimination because of disability and a failure to accommodate her disability-related needs as a result of being scheduled to teach classes on the same days that a particular co-worker was scheduled to teach classes and by the respondents’ refusal to re-schedule this co-worker’s classes so that she taught on different days than when the applicant was scheduled to teach;

b. that the respondents violated the applicant’s right to be free from discrimination because of disability due to the manner and process by which they responded to the applicant’s request for accommodation;

c. that one of the personal respondents harassed the applicant because of disability as a result of her questions about whether the applicant was too sick to teach in the 2009-2010 academic year and her comment about potentially shutting down the Japanese program;

d. that another personal respondent discriminated against or harassed the applicant because of disability or perceived disability by referring to her as “paranoid” during a telephone conversation on July 23, 2009; and

e. that the respondent University engaged in reprisal against the applicant when it failed to select her to teach a course or courses for the 2013-2014 academic year.

31As stated above, due to the failure of the applicant or her counsel to appear at the hearing on May 4, 2015, I was unable to confirm with the applicant that these in fact were the remaining issues to be determined in this proceeding or to obtain clarification as to what, if any, additional issues still needed to be decided.

32In any event, with regard to each of the issues I had identified, I asked the respondents for their submissions as to whether, if I were to accept the documents filed as authentic, there were any essential factual elements of proof required to support the applicant’s allegations that would be missing solely based on the documents and in what way would the respondents be prejudiced by their inability to cross-examine the applicant to test or challenge her evidence.

33With regard to issue (a), an essential element of proof is that the applicant establish that it was a disability-related need for her to teach on different days than her co-worker. I understand that the applicant’s allegation is that, due to her depression which she attributes to this co-worker’s conduct, the applicant’s medical condition would have been aggravated even by a chance encounter with this co-worker on days when they were both scheduled to teach, even though they were scheduled to teach at different times during the day with a one-hour gap between when the co-worker finished her classes and the applicant commenced her classes. The only medical evidence to support that this is an accommodation required due to the applicant’s disability is a short handwritten note by the applicant’s treating psychiatrist on a functional accommodation form dated September 10, 2009 which states, variously, “if co-worker present: depression” and “if co-worker is present, depression will emerge”. The documents also contain statements about the applicant’s fears about encountering this co-worker on the days that she was scheduled to teach, and the measures that she took to avoid or protect herself against such encounters. However, as stated above, accepting the documents as authentic does not entail acceptance of the truth of the statements made in these documents.

34Apart from the paucity of medical evidence supporting the allegation that scheduling the applicant and this co-worker on different days was a need arising from her disability, the applicant’s decision not to testify means that there would be no actual evidence before me as to why the applicant believes that this was a disability-related need, the basis of any fears or anxiety she may have had about encountering this co-worker, or the measures she took to avoid such encounters. Moreover, the respondents would be denied their ability to test or challenge any such evidence through cross-examination. Accordingly, in the absence of the applicant’s testimony, the documents alone would not be sufficient to prove that scheduling the applicant and this co-worker on different days was a “need” arising from the applicant’s disability that required accommodation under the Code.

35With regard to issue (b), the documentary evidence indicates that the applicant first requested that she be scheduled on different days than this co-worker in an e-mail dated August 28, 2009. In this e-mail, the applicant requested that she be able to switch classes with this co-worker. The University asked the co-worker if she would agree to the switch, and the co-worker declined. This was communicated to the applicant on September 2, 2009, along with the suggestion that the applicant ask her students if they would agree to having classes held on a different day. The applicant and her counsel responded on September 2, 2009 that this was not acceptable, and clarified that this was a formal request for disability accommodation under the Code. A meeting was held on September 8, 2009 to discuss this requested accommodation, and the need for medical support to be provided to the University’s Rehabilitation Services office was raised. This resulted in the applicant providing the functional accommodation form dated September 10, 2009 described above. On the basis of the review of this form and information provided by the University’s Rehabilitation Services office, the request for the specific accommodation sought by the applicant was denied by letter dated September 15, 2009 as not being supported.

36As I understand it, the issue raised by the applicant is that, whether or not she can establish that having classes scheduled on separate days was a “need” arising from her disability, the manner and process by which the University responded to her accommodation request in and of itself was a violation of her rights under the Code. In the Tribunal’s jurisprudence, this has sometimes erroneously been referred to as the procedural component of the duty to accommodate. In fact, as clarified by this Tribunal in Lee v. Kawartha Pine Ridge District School Board, 2014 HRTO 1212, the issue is whether the University discriminated against the applicant because of disability by failing to take appropriate steps to assess or respond to the applicant’s request for accommodation: see paras. 90 to 97.

37Establishing this form of discrimination still requires the applicant to provide evidence as to specifically what she alleges the University did or failed to do procedurally that amounts to discrimination against her and how this conduct engaged or affected her dignitary interests. Further, the respondents are entitled to cross-examine the applicant to test or challenge her evidence on this point. By refusing to testify, the applicant has failed to establish these essential elements of her allegation and has effectively frustrated the respondents’ ability to challenge her allegation and the Tribunal’s ability to proper determine the issue.

38With regard to issue (c), the questions about whether the applicant was too sick to teach in the 2009-2010 academic year are contained in documents authored by one of the personal respondents, so there is no issue that these questions were raised. However, the mere fact that these questions were raised is not sufficient to establish that the act of asking these questions amounts to harassment against the applicant because of disability. The definition of “harassment” as set out in s. 10 of the Code is “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. This Tribunal’s case law has determined that proof of harassment involves establishing both a subjective element – that the conduct was vexatious to the applicant – and an objective element – that the respondent knew or ought reasonably to have known that the conduct was unwelcome.

39By refusing to testify, the applicant would not have provided any actual evidence as to the subjective element required to prove harassment – namely that the asking of these questions was vexatious to her. Further, the respondents would be deprived of their ability to cross-examine to test or challenge any assertion being made by the applicant that the asking of these questions was vexatious to her. By refusing to testify, the applicant would have been unable to prove an essential element of her harassment allegation.

40With regard to the other comment raised as part of what I understand to be the harassment allegation – namely the comment about potentially closing down the Japanese program – this comment is alleged to have been made by one of the personal respondents to applicant counsel. Once again, as stated above, accepting as authentic the documents submitted by the applicant in which it is recorded that this comment was made is not actually proof that the comment was made. Further, as the comment was not made in the applicant’s presence, the applicant would not be able to provide any evidence to substantiate that this comment was made, even if she had not refused to testify. The applicant did not propose to call any other witness to prove that this comment was made.

41With regard to issue (d), once again accepting as authentic a letter from applicant counsel in which it is asserted that one of the personal respondents referred to the applicant as “paranoid” is not proof that this comment was made. By refusing to testify, the applicant would not have provided proof that this comment was made. Further, there is an issue between the parties not only as to whether the comment was made, but as to whether the applicant in fact was in the room to hear it, as the comment is alleged to have been made in the context of a telephone conversation between the personal respondent and applicant counsel. By refusing to testify, the applicant would have deprived the respondents of their ability to test or challenge her assertion not only that the comment was made but also that she was in the room to hear it, as well as being unable to test or challenge any assertion the applicant may have made about the impact of this comment on her.

42With regard to issue (e), I have before me the job application materials submitted to the University by the applicant and the successful candidates for the positions at issue. By refusing to testify, what I do not have is any actual evidence from the applicant to explain why she believes that she is more or at least as qualified for the positions than the successful candidates. On the basis of the documents alone, it is not clear that the applicant is more or at least as qualified as the two candidates who were selected by the University to teach these courses. In order for the applicant to make out a prima facie case of reprisal, I would have required evidence from her on this point.

43Further, by refusing to testify, the applicant would have deprived the respondents of their ability to test or challenge any assertion made by the applicant that she was more qualified than or at least as qualified as the successful candidates. This is an essential component of establishing a prima facie case of discrimination in the context of a job competition: see Shakes v. Rex Pak Ltd. (1981), 1981 CanLII 4315 (ON HRT), 3 C.H.R.R. D/1001, at para. 8919; Edwards v. Waterloo Region District School Board, 2009 HRTO 215.

44Moreover, leaving aside the issue of the applicant’s ability to prove a violation of her rights under the Code in the absence of any testimonial evidence, the applicant’s refusal to testify also would mean that I would have no evidence before me in order to determine any remedial issues if a violation of the Code were to be found. In the Applications, the applicant has claimed a significant amount of compensation for injury to her dignity, feelings and self-respect. In the absence of any testimony from her, I would have no evidence regarding the impact on her of any conduct I found to be in violation of the Code in order to enable me to assess any such award, and the respondents would have no ability to test or challenge any such evidence through cross-examination. Further, in relation to the reprisal Application, the applicant has claimed compensation for lost income arising from her failure to be selected to teach the courses at issue. In the absence of the applicant’s testimony, I have no evidence as to what if any efforts the applicant may have made to mitigate her damages or what if any income she earned during the relevant period that may need to be offset against any such award. Further, the respondents would have no ability to test or challenge the applicant’s lost income claim and mitigation efforts through cross-examination.

ORDER

45For all of the foregoing reasons, the Applications are dismissed due to the applicant’s failure to appear for the hearing in this matter.