Khella v. Shred-it International ULC, 2016 HRTO 1169

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gehan Khella Applicant

-and-

Shred-it International ULC Respondent

DECISION

Adjudicator: Mark Hart Date: September 6, 2016 Citation: 2016 HRTO 1169 Indexed as: Khella v. Shred-it International ULC

APPEARANCES

Gehan Khella, Applicant No one appearing

Shred-it International ULC, Respondent Asha Rampersad, Counsel

1This is an Application dated September 24, 2015 and completed October 27, 2015 alleging discrimination with respect to employment because of race, ancestry and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This matter was scheduled to proceed to a hearing on September 6 and 7, 2016. In advance of the hearing, I issued a Case Assessment Direction (“CAD”) dated August 5, 2016 directing the applicant to serve and file certain materials and information in advance of the hearing, including a complete copy of her medical records during the relevant period, confirmation as to her treating physicians or medical practitioners during this period, a hard copy of the documents upon which she intended to rely at the hearing, and clarification regarding the witnesses she proposed to call to testify at the hearing. The applicant was to have served and filed these materials and information within 14 calendar days of the date of the CAD, or by August 19, 2016.

3The applicant did not do so by the deadline set out in the CAD, nor did she communicate with the Tribunal in any manner by this time. By e-mail correspondence dated August 30, 2016, respondent counsel noted that the applicant had failed to comply with the directions given in the Tribunal’s CAD and requested that the applicant provide the materials and information directed by the CAD forthwith, failing which the respondent put the applicant on notice that it would be seeking dismissal of the Application.

4On Friday, September 2, 2016 at 4:47 p.m., the applicant sent e-mail correspondence taking the position that she already had disclosed all of her medical records. She did not otherwise respond to the directions set out in the Tribunal’s CAD. She also stated that she did not want to continue wasting her time with the respondent company, and had secured new employment which required her full attention. The applicant did not, however, expressly state that she was seeking to withdraw her Application.

5Respondent counsel and its representatives appeared for the hearing on September 6, 2016. The applicant was not in attendance. I was advised by respondent counsel that she had replied to the applicant’s e-mail seeking clarification as to whether the applicant was withdrawing her Application, but had received no response.

6I waited the customary half hour to allow the applicant the opportunity to appear. When she had not done so by 10:00 a.m., I advised the respondent that the Application would be dismissed as abandoned.

7The filing of an Application with this Tribunal represents the commencement of a legal proceeding, in which all parties are required to comply with the Tribunal’s Rules, directions and orders. In particular, an applicant is required not only to comply with these obligations, but also to appear for the scheduled hearing. Once a Response has been filed, as it was in this case, an Application can only be withdrawn with this Tribunal’s consent and on such terms as this Tribunal considers appropriate.

8In her e-mail sent late in the day on September 2, 2016, the applicant did not clearly state her intention to seek leave to withdraw her Application, although one may be able to deduce from the language used in her e-mail that she did not intend to appear for the hearing. However, in the absence of a clear request from the applicant to withdraw her Application, it is my view that the Application should be considered abandoned both due to the applicant’s failure to appear for the hearing and due to her failure to comply with this Tribunal’s directions as set out in the CAD.

ORDER

9For these reasons, the Application is dismissed as abandoned.