HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Shaunakay Francis
Applicant
-and-
Best Buy Canada Ltd.
Respondent
DECISION
Adjudicator: Ken Bhattacharjee
Date: November 4, 2016
Citation: 2016 HRTO 1438
Indexed as: Francis v. Best Buy Canada Ltd.
[1] On December 29, 2015, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), and on April 19, 2016, the respondent filed a Response.
[2] On June 30, 2016, the Tribunal issued a Notice of Hearing to the parties, which informed them that the hearing is scheduled for November 7, 2016, at the Tribunal's hearing centre in Toronto.
[3] The Notice of Hearing set out the Tribunal's Rules of Procedure with respect to disclosure of documents and witnesses, and summarized the parties' disclosure requirements as follows:
STEP TWO: Disclosure and Filing of Witness Statements and Documents to be relied upon (Rules 16.2, 16.3, 17.1 and 17.2)
By September 23, 2016, each party must prepare:
a list of the documents you intend to rely on at the hearing. These are the documents that you have chosen to put before the tribunal from among the documents disclosed at step one by both parties.
copies of each of these documents for the HRTO.
a witness statement setting out the intended evidence of each witness.
The witness statements should be detailed and set out in full the testimony that the witness will give. A witness statement must be filed for each witness, including an applicant or individual respondent. If the witness's evidence is fully set out in the application or response, the witness statement can simply confirm this.
You must deliver the witness statements and the list of the documents you intend to rely on to the other parties. Then file all three, including the documents you will rely on, and a completed Statement of Delivery (Form 23) with the HRTO by the deadline date.
[4] The Notice also stated that if the applicant does not disclose and file the required materials, the Application may be dismissed, and if the respondent does not disclose and file the required materials, it may not be allowed to present evidence at the hearing.
[5] In [C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426](https://www.minicounsel.ca/hrto/2010/426), the Tribunal explained the rationale for pre-hearing disclosure at para. 7:
The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal's process. It ensures that each party fully understands the other side's case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent.
[6] By September 23, 2016, neither the applicant nor the respondent had complied with Rules 16 and 17.
[7] In the Tribunal's experience, a large number of parties who fail to comply with their pre-hearing obligations do not attend hearings. See [Lukusa v. Toronto Police Service, 2012 HRTO 2054](https://www.minicounsel.ca/hrto/2012/2054) at para. [5](https://www.minicounsel.ca/hrto/2012/2054). The Tribunal has a duty to dispose of applications fairly, justly and expeditiously: see section 40 of the Code and Rule 1.1 of the Tribunal's Rules. This duty is not only in relation to the parties, but also to the public, whose tax dollars fund the Tribunal. In [Ouwroulis v. New Locomotion, 2009 HRTO 335](https://www.minicounsel.ca/hrto/2009/335), the Tribunal stated at paras. 4-7:
Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant's rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.
When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.
Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.
The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal's Rules. The Tribunal's procedures are less formal than a court's and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party's failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.
[8] Accordingly, on September 30, 2016, the Tribunal issued a Case Assessment Direction ("CAD") to the parties, which stated the following at para. 9:
By no later than 5:00 p.m. on October 7, 2016, the parties shall (1) file with the Tribunal and deliver to each other the materials required under Rules 16 and 17, or (2) confirm in writing to the Tribunal and each other that the Application/Response reflects the evidence that will be given by them, and that they will not be relying on any further documents or calling any further witnesses. If the applicant fails to follow this direction, the Tribunal may dismiss the Application as abandoned. If the respondent fails to follow this direction, the Tribunal may not allow it to present evidence at the hearing.
[9] The respondent complied with this direction, but the applicant did not. On October 12, 2016, the applicant sent the Tribunal an email, which stated:
I am inquiring if it is possible to change the date from October 20th or if I can have a representative there on my behalf. I'm currently in school and the week is happening is the busiest week for me all my exams are taking place the same week and is difficult to prepare for both.
The applicant did not deliver a copy of her email to the respondent as required by Rule 1.12 of the Tribunal's Rules.
[10] On the same day, the Tribunal's Registrar sent the applicant an email in response, which informed her that her presence will be required at the hearing, and that she was required to deliver a copy of her email to the respondent.
[11] To date, the applicant has not complied with the direction in the September 30, 2016 CAD, has not confirmed that she delivered a copy of her October 12, 2016 email to the respondent, and has not confirmed that she will be attending the hearing.
[12] Given the applicant's ongoing failure to comply with the Tribunal's Rules on disclosure of documents and witnesses, the suggestion in her October 12, 2016 email that she may not attend the hearing, and her failure to confirm that she will be attending the hearing, the applicant is deemed to have abandoned the Application. The hearing scheduled for November 7, 2016 is cancelled.
[13] The Application is dismissed.
Dated at Toronto, this 4th day of November, 2016.
"Signed by"
Ken Bhattacharjee
Vice-chair