Human Rights Tribunal of Ontario
B E T W E E N:
Angela Bray Applicant
-and-
Canadian Niagara Hotels Inc. (Sheraton on the Falls) Respondent
DECISION
Adjudicator: Dawn J. Kershaw Date: December 5, 2016 Citation: 2016 HRTO 1558 Indexed as: Bray v. Canadian Niagara Hotels Inc. (Sheraton on the Falls)
1A hearing in respect of this Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended, was scheduled to begin at 10:00 a.m. on November 30, 2016 in St. Catharines, in accordance with the Notice of Hearing ("Notice"), dated August 15, 2016. By 10:30 a.m., the applicant had not appeared, and did not contact the Tribunal. The respondent was present.
2The Tribunal mailed and e-mailed the Notice to the applicant at the addresses she provided in her Application, and neither was returned as undeliverable. The Notice advised the applicant that the hearing was to begin at 10:00 a.m. on November 30, 2016.
3The Notice included the following:
If you do not attend the hearing after receiving proper notice, the HRTO may proceed in your absence (if you are a respondent or intervener) or dismiss the Application as abandoned (if you are the applicant).
4The Notice also set out the requirements for disclosure of documents and witness statements. The applicant was to provide her arguably relevant documents to the respondent by no later than September 6, 2016 and her witness statements and documents to be relied on at the hearing by no later than October 17, 2016.
5The Tribunal issued several Case Assessment Directions ("CAD") after the Notice and in advance of the hearing because the applicant did not comply with the disclosure requirements set out in the Notice. It appears from the respondent's documents that the applicant sent some videos to the respondent on September 6, 2016, but she never filed a Form 23 Statement of Delivery with the Tribunal confirming this, and the Tribunal did not know she had done this until the respondent representative's e-mail to the Tribunal, dated November 14, 2016 in which he attached several e-mails between him and the applicant respecting the applicant's disclosure of these videos to him on September 6 and 7, 2016 by e-mail.
6On October 24, 2016, the Tribunal issued a CAD extending the time for the applicant to deliver and file her witness statements and her arguably relevant and hearing documents to October 31, 2016. It also addressed the respondent's Request for an Order During Proceedings asking that the Application be dismissed as having no reasonable prospect of success ("summary hearing"), which the Tribunal advised it would address if and when the applicant filed her Form 11 Response to a Request for an Order During Proceedings. This CAD was delivered to the applicant by e-mail and mail and neither was returned as undeliverable.
7In response to the October 24, 2016 CAD, the applicant contacted the Tribunal by e-mail on November 14, 2016. Despite the applicant's claim in this e-mail that she had not heard from the Tribunal in a long time, she acknowledged receiving the October 24, 2016 CAD. Despite this, she still did not comply with the requirement to deliver to the respondent and file with the Tribunal her hearing documents and witness statements.
8Subsequent to her November 14, 2016 e-mail, the Tribunal issued another CAD, dated November 14, 2016, and again delivered it to the applicant by both e-mail and mail, neither of which was returned to the Tribunal as undeliverable. This CAD stated in part:
The applicant e-mailed the Tribunal on November 14, 2016 to advise she received the CAD of October 24, 2016, apparently by mail but not by e-mail though it was sent by both methods. The applicant indicated in her Application that her preferred method of communication was by email although she now states they are never as official (or dependable).
In her November 14, 2016 email, the applicant further advises she had not heard from the Tribunal in a long time, although the Notice of Hearing was sent to her on August 15, 2016 again by both mail and email.
The August 15, 2016 Notice of Hearing clearly set out the requirements for document production, which was reinforced by the October 24, 2016 CAD.
9The Tribunal then delivered by e-mail and mail a third CAD, dated November 23, 2016 in response to a letter from the respondent, dated November 22, 2016 letter, in which he requested that the Application be dismissed as abandoned. Neither the e-mailed or mailed CAD was returned to the Tribunal as undeliverable. Although the applicant asked that the Tribunal send her a hard copy of any further requests, the Tribunal while doing so, also sent the CAD's by e-mail because of the proximity of the hearing date. The November 23, 2016 CAD stated in part:
The applicant still has failed to comply with Rules 16 and 17 of the Human Rights Tribunal of Ontario's (the Tribunal's) Rules of Procedure regarding pre-hearing disclosure of documents and witnesses, despite the directions to her in the Case Assessment Directions ("CAD's"), dated October 24 and November 14, 2016.
The hearing in this matter will proceed as scheduled on November 30, 2016.
Prior to the hearing on the merits, the parties will be asked to make submissions with respect to the consequences, if any, of the applicant's failure to comply with the directions in the CAD's, and with respect to the respondent's request for a summary hearing.
10It is clear the applicant received the Notice and at the very least the CAD of October 24, 2016, which also advised the applicant of the disclosure obligations and the hearing date, and yet she failed to comply with the directions in that CAD, and failed to appear at the hearing.
11In response to the applicant's absence, the respondent asked that the Application be dismissed as having no reasonable prospect of success and made submissions in that respect.
12Having considered the respondent's submissions, I do not think this is an appropriate case to dismiss on a summary basis. However, given the applicant's absence at the hearing, the Application is dismissed as abandoned.
Dated at Toronto, this 5th day of December, 2016.
"Signed By"
__________________________________
Dawn J. Kershaw Vice-chair