Atkinson v. Nandrajog, 2016 HRTO 1138

Human Rights Tribunal of Ontario

B E T W E E N:

Susan Atkinson

Applicant

-and-

Ashwani Nandrajog

Respondent

DECISION

Adjudicator: Mary Truemner

Date: August 25, 2016

Citation: 2016 HRTO 1138

Indexed as: Atkinson v. Nandrajog

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on July 2, 2015.

2On April 7, 2016, the Tribunal issued a Notice of Confirmation of Hearing to the parties confirming that a two-day hearing of the Application would take place on August 24 and 25, 2016, commencing at 9:30 a.m. at the Tribunal’s hearing centre at 655 Bay St, 14th Floor, Toronto, Ontario.

3The applicant failed to meet the deadline set by the Tribunal’s Rules of Procedure for filing witness statements and documents upon which she intended to rely at the hearing; therefore, the Tribunal sent her a Case Assessment Direction dated August 3, 2016 that directed her to file the missing documents by August 12, 2016. She complied with the direction by that date, confirming that she would be the only witness, and advised in her covering letter that she would be represented at the hearing by counsel.

4No counsel has communicated with the Tribunal with respect to this file.

5On the evening before the first day of the hearing, at 8:53 p.m. on August 23, 2016, the applicant sent to the Tribunal an email stating that she was unable to attend the next day’s hearing because of illness. She wrote:

I returning [sic] from a few days vacation at 7:30 this evening not well. The grounds for my request are due to illness. I am suffering an ear infection, respiratory distress, and laryngitis. I am seeking medical attention.

6The respondent attended the first day of the hearing and Tribunal staff told him of the applicant’s illness and the need to cancel the first day of the hearing. The Registrar of the Tribunal then sent an email to the parties at 9:31 a.m. on August 24, 2016. In its email, the Tribunal wrote:

The Human Rights Tribunal of Ontario (HRTO) is in receipt of the Applicant’s email dated August 23, 2016. Vice-Chair Mary Truemner has reviewed the email and directed that today’s hearing be cancelled, however the parties must attend the hearing by teleconference tomorrow morning at 9:30 a.m., in order to hear the applicant’s request for an adjournment and if the parties are agreeable to participate in mediation-adjudication. The Tribunal’s Rule 15A authorises the use of mediation-adjudication where the adjudicator assigned assists the parties with their consent to resolve their disputes on the understanding that a settlement is not reached the adjudicator will go on to hear and determine the case. The parties are to return the attached mediation-adjudication agreement to the Human Rights Tribunal of Ontario (HRTO) today, if they are in agreement to participate in mediation-adjudication.

In addition, prior to 9:00 a.m. tomorrow, the applicant must file a doctor’s certificate in support of her request to adjourn and a copy of her non-refundable ticket to Toronto to which she referred in her email, copied to the Respondent.

The HRTO’s scheduling department will provide the call-in information for tomorrow’s conference call shortly.

7In reply to the above email from the Registrar, the applicant signed and returned the mediation-adjudication agreement. She also attached a copy of a bus ticket for August 24, 2016 and a doctor’s note which stated that he examined the applicant on August 24, 2016 and that she had a significant degree of laryngitis.

8I am satisfied that the applicant had notice of the hearing that was to proceed by teleconference on August 25, 2016.

9The applicant was not in attendance at 9:30 a.m., the commencement of the August 25, 2016 scheduled hearing date. In accordance with its usual practice, the Tribunal waited until 10:00 a.m. before proceeding.

10At 10:00 a.m. the applicant was not in attendance nor had the applicant communicated with the Tribunal to explain the failure to attend. The respondent made submissions that he had attended the first day of the hearing, making arrangements so that his witnesses could attend as well. He argued that it was clear that the applicant had notice of today’s hearing, and that attendance was mandatory. He argued that the Application should be dismissed as abandoned.

11In the circumstances, the Application was dismissed on the basis that the applicant was deemed to have abandoned the Application.