Naji Ben Saad v. 1544982 Ontario Inc., 2016 HRTO 1410

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Naji Ben Saad

Applicant

-and-

1544982 Ontario Inc., Essex Weld Solutions Ltd., EWS Inc. and Windsor Management

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: November 1, 2016
Citation: 2016 HRTO 1410
Indexed as: Saad v. 1544982 Ontario Inc.

background

1A hearing in respect of this Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended, was held on September 6, 2016 in Windsor. The respondents failed to attend, and the hearing proceeded in their absence. The respondents now ask that the hearing be rescheduled. However, the hearing is complete, although I have not yet issued my Decision. The respondents’ request more accurately is a request to re-open the hearing.

2On September 7, 2016 the respondents’ representative e-mailed the applicant’s lawyer and the Tribunal and apologized for failing to attend. He explained his wife was hospitalized on September 6, 2016, and he did not have the mental fortitude to contact either his clients or opposing counsel. He stated that about 30 minutes before the hearing he was called into the emergency room. He requested the hearing be rescheduled.

3The applicant’s lawyer responded on September 8, 2016 and raised concerns about the explanation. He argued there is no medical documentation to confirm the emergency, or anything to affirm that the respondents’ representative’s mental state was so disturbed he could not contact the Tribunal, the applicant’s counsel or his clients. In addition, he stated there is no explanation for why the respondents did not attend the hearing.

4He argued the respondents’ failure to attend shows a pattern of non-compliance with the Tribunal’s rules, and the respondents also filed no witness statements or documents upon which they intended to rely by the deadline outlined in the Notice of Hearing. He submits the hearing should not be rescheduled.

5On September 9, 2016, the respondents’ representative sent to the applicant’s lawyer and the Tribunal what he asserted was a photo of his wife lying in a hospital bed. He advised he sent his request for a new hearing date as soon as he returned from the hospital. He stated he does not have a psychologist’s report to confirm his mental capacity to call on the day of the hearing.

6He further stated with respect to the applicant’s submission about document disclosure that he did not get the “defendant’s” [applicant’s?] documents until August 31, 2016.

7The Tribunal issued a Case Assessment Direction (“CAD”) on September 20, 2016 requesting that the respondents’ representative provide the following information:

a. A redacted copy of an emergency room record to substantiate his wife’s attendance at emergency on September 6, 2016;

b. An explanation for why the respondents did not deliver and file by the deadline set out in the Notice of Hearing their witness statements and documents upon which they intended to rely at the hearing; and

c. An explanation for why the respondents did not attend the hearing.

8The CAD also provided a timeline for the applicant to deliver a response to the respondents’ submissions, if he wished to do so.

9Both the respondents and the applicant provided submissions.

respondents’ submissions

10The respondents’ representative provided submissions in which he includes a doctor’s note, but not an emergency room record as directed in the CAD. He asserts the doctor’s note from his wife’s treating doctor speaks to both his wife’s medical state and his own mental state at the time of the emergency. The doctor’s note states the applicant drove his wife to the hospital; and the doctor treated the applicant’s wife on September 6, 2016 on an urgent basis at 12:30 p.m. and she remained in the emergency department until 4:15 a.m. on September 7, 2016. The note does not address the respondents’ representative’s mental state as the respondent’s representative states.

11With respect to document disclosure in advance of the hearing, the respondents’ representative further submits the respondents submitted their documents when they filed the Response and there were no additional documents. In addition, their witness statement was provided before the August 19, 2016 deadline.

12With respect to the reason the respondents did not attend the hearing, the respondents’ representative submits he did not tell them the location of the hearing and intended to drive them himself.

applicant’s submissions

13The applicant argues the hearing was scheduled to begin at 10 a.m., yet the doctor’s note states the respondents’ representative drove his wife to the hospital where she was treated on an urgent basis at 12:30 p.m., leaving an unexplained gap of 2 ½ hours. In addition, the applicant submits the timeline set out in the doctor’s note does not correspond with the respondents’ representative’s September 7, 2016 letter in which he stated he was called into the emergency room about 30 minutes prior to the start of the hearing, which would have been 9:30 a.m.

14The applicant also points out that the medical note does not address the respondents’ representative’s mental state as he claimed.

15With respect to the filing of witness statements and documents to be relied on at the hearing, the applicant argues the respondents’ representative provides no explanation for why the respondents did not advise him and the Tribunal that they intended to rely on the documents already disclosed, despite the August 24, 2016 CAD that advised them they had to file documents and witness statements by no later than August 31, 2016.

16The applicant argues the respondents’ representative’s explanation for why the respondents did not attend the hearing does not explain why the respondents did not contact the Tribunal when their representative did not show up to drive them to the hearing if they did not know the hearing location.

17Finally, the applicant argues that there must be compelling and exceptional reasons to hold a new hearing.

analysis and decision

18In deciding whether to re-open the hearing because of the respondents’ failure to attend, I must assess the reasons given for the respondents’ non-attendance and determine if there was any breach of procedural fairness or the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”).

19As indicated, the hearing has been completed, although no reasons have yet been issued. At this stage, there must be a compelling reason to re-open the hearing, which would include a consideration of any potential issues of procedural fairness.

20In this case, I find no breach of procedural fairness or the SPPA. Procedural fairness provides an opportunity to know the case against a party and to respond. The respondents did not appear at or participate in the September 6, 2016 hearing, but I am not satisfied that they were denied the opportunity to appear and participate.

21Section 7 of the SPPA states:

Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding.

22Rule 3.13 of the Tribunal’s Rules of Procedure states:

3.13 Where a party has been notified of a hearing and fails to attend, the Tribunal may:

i. proceed in the party’s absence;

ii. determine that the party is not entitled to further notice of the proceedings;

iii. determine that the party is not entitled to present evidence or make submissions to the Tribunal;

iv. decide the Application based solely on the materials before it;

v. take any other action it considers appropriate.

23In addition, section 6 of the SPPA sets out the requirements for notice of an oral hearing, which include: a reference to the statutory authority under which the hearing will be held; a statement of the time, place and purpose of the hearing; and a statement that if the party notified does not attend the hearing, the tribunal may proceed in the party’s absence and the party will not be entitled to any further notice in the proceeding.

24I proceeded with the hearing in the respondents’ absence in accordance with my authority under s. 7(1) of the SPPA and Rule 3.13(i). There is no dispute that the respondents knew about the hearing date and failed to attend, and that I had the authority to proceed with the hearing in their absence. As such, I turn now to a consideration of the respondents’ reasons for their non-attendance.

25First, the explanation given by the respondents’ representative is not consistent. The time he gave in his September 7, 2016 e-mail to the Tribunal does not match the time at which the emergency room doctor treated the respondents’ representative’s wife, and there is no explanation. Whereas the respondents’ representative stated he could neither attend the hearing or contact anyone with respect to his absence because he was called into the emergency room half an hour before the hearing was to begin, which means 9:30 a.m., the doctor’s note says the respondents’ representative’s wife was treated three hours later at 12:30 p.m. Of secondary importance, but noteworthy, is also the fact that the respondents’ representative does not explain why he did not provide a redacted copy of the emergency room record as directed in the September 20, 2016 CAD. This may have cleared up any issue of whether the respondents’ representative in fact did take his wife to the emergency room when he said he did and that the emergency room doctor just did not treat the respondents’ representatives’ wife until the time indicated in his report. This however was not available to me, despite my request for it.

26The respondents’ representative’s submissions also do not explain why the respondents appear to simply have taken no action if, as the respondents’ representative explained, he was to drive them to the hearing and did not show up because he was at the hospital with his wife. There is no record of the respondents contacting the Tribunal or the applicant’s counsel to explain that their ride had not appeared.

27Finally, the respondents’ non-attendance at the hearing is consistent with their failure to follow the Tribunal’s directions in advance of the hearing. While one is a failure to follow Tribunal directions and the other is a failure to contact the Tribunal, they both demonstrate an apparent lack of participation by the respondents and their representative. Despite the August 24, 2016 CAD advising them they had to file documents and witness statements by no later than August 31, 2016, the respondents failed to deliver any documents. In addition, although it appears the respondents’ representative delivered a witness statement to the applicant’s counsel, the Tribunal did not receive a copy, contrary to the direction in the CAD. The respondents’ representative failed to respond to the Tribunal in any way in response to its August 31, 2016 CAD.

28For all these reasons, I am not satisfied that the respondents or the respondents’ representative have provided a compelling and extraordinary reason to explain either their failure to attend the hearing on September 6, 2016 or their failure to contact the Tribunal or the applicant on the morning of the hearing to advise of their inability to attend.

29The respondents have not provided any convincing reasons to establish any breach of procedural fairness. The reasons provided do not form the basis for a finding that the respondents were not provided an opportunity to appear and participate in the hearing. For that reason I decline to grant the respondents’ request to re-schedule the hearing, or more accurately their request to re-open the hearing.

order

30The respondents’ request to re-open the hearing is dismissed.