Gui v. Pechiney Plastic Packaging (Canada) Inc., 2016 HRTO 140

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Arvin Gui

Applicant

-and-

Pechiney Plastic Packaging (Canada) Inc. o/a Alcan Packaging Incorporated

Respondent

DECISION

Adjudicator: Mark Hart

Date: January 29, 2016

Citation: 2016 HRTO 140

Indexed as: Gui v. Pechiney Plastic Packaging (Canada) Inc.

1This is a transitional Application dated June 23, 2009 and filed pursuant to s. 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. The underlying complaint to the Ontario Human Rights Commission is dated April 24, 2007.

2On June 1, 2010, the parties entered into Minutes of Settlement whereby they jointly consented to an order deferring this Application pending the final disposition of the applicant’s claim under the Workplace Safety and Insurance Act (“WSIA”). At the time of the Minutes of Settlement, the applicant’s WSIA claim was at the initial appeal stage before the Workplace Safety and Insurance Board (“WSIB”). The Minutes contemplated that, if the applicant was unsuccessful at the initial appeal stage, he might commence a further appeal to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). In that event, the Minutes required the applicant to advise the respondent and this Tribunal of the outcome in a timely fashion in accordance with the consent Order and the Tribunal’s Rules and advise of his intentions with respect to the Application before this Tribunal.

3The Tribunal issued an Interim Decision dated June 2, 2010 confirming that this Application had been deferred on consent pending the outcome of the applicant’s WSIA appeals. This Interim Decision stated that any party wishing to re-activate this Application could do so in writing within 60 days of the conclusion of the WSIA proceedings in accordance with Rule 16 of the Tribunal’s Rules of Procedure for Transitional Applications.

4On September 30, 2010, applicant counsel wrote to the Tribunal to advise that the applicant had not been successful at the initial appeal stage before the WSIB, and was intending to appeal all outstanding issues to WSIAT.

5On September 15, 2011, the Tribunal wrote to the parties to direct the applicant to advise within 30 days whether he had appealed the WSIB decision to WSIAT and, if so, to advise as to the status of the appeal. The applicant was further advised that, if he failed to do so, the Tribunal may dismiss his Application as abandoned.

6On October 14, 2011, applicant counsel wrote to the Tribunal to advise that an appeal had been filed by the applicant with WSIAT in early January 2011, the timeliness of which had been confirmed by WSIAT on February 25, 2011. This appeal related to all outstanding issues, including issues involving an alleged breach of the applicant’s human rights. Counsel advised that he was preparing the Confirmation of Appeal form for WSIAT, which would then lead to a confirmed hearing date. Counsel also advised that he was in the process of collecting additional medical information in support of the applicant’s appeal.

7On August 21, 2012, the Tribunal sent a further letter to the parties, directing the applicant to advise as to the status of the WSIAT appeal. Once again, the applicant was advised that if he failed to respond, his Application may be dismissed as abandoned.

8On September 6, 2012, applicant counsel wrote to advise that the WSIAT appeal was still underway and that a hearing date should be provided in due course. Counsel advised that he was still in the process of gathering new evidence to present to WSIAT.

9On September 13, 2013, the Tribunal wrote again to the parties, directing the applicant to advise as to the status of the WSIAT appeal. Once again, the applicant was advised that if he failed to respond, his Application may be dismissed as abandoned.

10On September 19, 2013, applicant counsel wrote to advise that the applicant’s WSIAT appeal remained in the appeal stream. He advised that a Confirmation of Appeal form had been filed in the spring of 2013 and since that time the parties had received WSIAT materials for the purpose of the appeal. He further advised that on August 20, 2013, the parties had received a confirmation letter from the WSIAT Office of the Vice-Chair Registrar, indicating that a legal worker would be in contact with the parties to review the case and discuss the appeal. Counsel expressed his understanding that the matter would be scheduled for hearing as soon as possible.

11On January 15, 2015, counsel for the applicant wrote to the Tribunal to advise that the appeal had been heard by a WSIAT panel on December 1, 2014 and that the parties were awaiting WSIAT’s decision. Counsel further advised that he had now left the private practice of law and therefore could not continue as the applicant’s legal representative with respect to this matter. He indicated that the applicant was aware of this and was fully aware of counsel’s non-practicing status. Counsel requested that his name be removed as the applicant’s representative before this Tribunal and that all future correspondence be sent directly to the applicant’s attention.

12On January 22, 2015, the Tribunal sent a letter to the parties confirming counsel’s withdrawal as the applicant’s legal representative. The Tribunal also confirmed that this matter remained deferred pending WSIAT’s decision on the appeal.

13On November 30, 2015, the Tribunal sent a letter to the parties directing the applicant to advise as to the status of his WSIAT appeal by December 30, 2015. If the appeal was concluded, the applicant was directed to advise of the conclusion date and attach any orders or decisions. The applicant once again was advised that if he failed to respond, this Tribunal may dismiss his Application as abandoned.

14It is now almost a month past the deadline for the applicant to respond to the Tribunal’s letter, and the Tribunal has received no communication from him. The Tribunal’s letter dated November 30, 2015 was sent to the applicant by regular mail and courier to the address set out by the applicant on his Application. The courier package was confirmed as delivered on December 1, 2015. I am satisfied that the applicant received the Tribunal’s letter dated November 30, 2015 and that he is aware that he needed to communicate with the Tribunal by December 30, 2015 and failed to do so. I also am satisfied that the applicant was on notice of the potential consequences of his failure to communicate with the Tribunal by December 30, 2015, namely that this Application may be dismissed as abandoned.

15The matter before this Tribunal is a legal proceeding initiated by the applicant, which imposes upon him an obligation to comply with this Tribunal’s directions. The applicant has failed to do so, and is aware of the potential consequences of his failure to do so. In these circumstances, I find that the Application is abandoned.

ORDER

16For the foregoing reasons, this Application is dismissed as abandoned.