Donald Williams v. Toronto Transit Commission, 2016 HRTO 268

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donald Williams

Applicant

-and-

Toronto Transit Commission

Respondent

-and-

Amalgamated Transit Union, Local 113

Intervenor

DECISION

Adjudicator: Jo-Anne Pickel

Date: February 29, 2016

Citation: 2016 HRTO 268

Indexed as: Williams v. Toronto Transit Commission

APPEARANCES

Donald Williams, Applicant

Did not attend

Toronto Transit Commission, Respondent

Lucy Siraco, Counsel

Amalgamated Transit Union, Local 113, Intervenor

Dean Ardron, Counsel

1In his Application, the applicant alleged that the respondent discriminated and reprised against him contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). Specifically, he alleged that the respondent denied him overtime opportunities sometime between December, 2009 and the date on which the Application was filed (June 28, 2010). The applicant also alleged that on June 19, 2010 the respondent detailed him to do work he “does not do”. The applicant alleged that the respondent took these actions against him as a reprisal under the Code and/or due to his association with an individual who is allegedly identified by one of the grounds protected under the Code.

Background to the Application

2This Application has a very long history at the Tribunal. I will not review all of the Interim Decisions and Case Assessment Directions issued in this case. Instead, I limit myself to reviewing key Interim Decisions which provide context for the conclusions I reach below.

3This Application was deferred for a period of time pending the conclusion of a related arbitration proceeding: Interim Decision, 2011 HRTO 1241. The Tribunal re-activated the Application at the conclusion of the related proceeding and directed that a preliminary hearing by teleconference be held to hear submissions in relation to the respondent’s requests to dismiss/strike portions of the Application on the basis of abuse of process: Interim Decision, 2012 HRTO 1982. The applicant did not call into the teleconference for the preliminary hearing and therefore I dismissed his Application as abandoned: Decision, 2013 HRTO 881.

4The applicant filed a Request for Reconsideration in which he claimed he had mistakenly read the Notice of Hearing and did not realize that he was required to dial into the teleconference. Despite the concerns I expressed in my Reconsideration Decision regarding the credibility of the applicant’s claims, I granted his Request for Reconsideration: Reconsideration Decision, 2013 HRTO 1196.

5The Tribunal rescheduled the preliminary hearing. After hearing the parties’ submissions, I denied the respondent’s requests to dismiss the Application on the basis that the Application was founded upon confidential and improperly obtained information in violation of the orders of an arbitrator as well as the implied undertaking rule: Interim Decision, 2014 HRTO 327. Despite the concerns I expressed about the applicant’s credibility in my Interim Decision, I found that it was not appropriate to dismiss the Application on the grounds relied upon by the respondent. Following this, I denied the respondent’s request to dismiss the Application for failure to make out a prima facie case on the basis that I found it necessary to hear at least some evidence from the applicant to determine his Application: Interim Decision, 2014 HRTO 593.

6A key issue leading up to the merits hearing in this case was the applicant’s refusal to provide relevant particulars to the respondent with respect to his claim that he was denied overtime in violation of the Code. The applicant refused to provide the relevant particulars when requested to do so by the respondent. He also failed to comply with my Order to provide the relevant particulars to the respondent and file them with the Tribunal: Interim Decision, 2016 HRTO 200.

7Another key issue in these proceedings has been the respondent’s concern to maintain the confidentiality of information disclosed for the purposes of this proceeding. This concern was based on the fact that the applicant had, in the past, gained access to evidence that a co-worker of his had improperly disclosed to him in violation of an arbitrator’s order and the implied undertaking rule: see discussion in Interim Decision, 2014 HRTO 327.

Applicant’s Failure to attend hearing

8The merits hearing for this Application was scheduled to take place on February 25-26, 2016. The applicant faxed a letter to the Tribunal at 6 AM on the morning of the hearing advising the Tribunal that he had decided not to attend the hearing. He claimed that he had reason to believe that he would not receive a fair hearing because I am biased and “many other factors”. He stated that he was not abandoning his Application and trusted that the Tribunal would proceed with a hearing in his absence. He stated that, upon receipt of the decision, he would seek judicial review from the Divisional Court in regards to “many errors”.

9At the hearing, I sought submissions from the respondent and the intervenor as to appropriate next steps in light of the applicant’s letter. The respondent requested that I dismiss the Application. The respondent’s counsel submitted that the applicant has abused the Tribunal’s process. In the respondent’s view, the applicant has tried to use the Tribunal’s process to convert concerns over the assignment of overtime into a human rights issue. The respondent’s counsel noted that the applicant has doggedly refused to provide details or particulars to support his claim in response to the respondent’s requests and also my direct Order to provide the particulars in question.

10The respondent’s counsel submitted that the applicant is now using a claim of bias to avoid having the Application dismissed on the merits. She submitted that the applicant’s actions in this case have caused the respondent to expend a significant amount of resources. She argued that, if the Tribunal had the power to award costs, this would be a perfect case for such an order. The respondent relied upon the two following cases to seek a dismissal of the Application: Ouwroulis v. New Locomotion, 2009 HRTO 335 (“Ouwroulis”) and Drenic v. Governing Council of the Salvation Army, 2010 HRTO 2010 HRTO 1868.

11As a final point, the respondent noted that, if the applicant had intended to attend the hearing, he would have had to request time off work. He did not do so. The respondent relied upon this as evidence that the applicant had no intention of attending the hearing and could have advised the Tribunal and respondent he would not appear before the morning of the hearing.

12The intervenor indicated that it took no position in relation to the respondent’s request to dismiss the Application.

Findings

13I grant the respondent’s request to dismiss the Application due to the applicant’s failure to attend the hearing and his clear disregard of the Tribunal’s Orders. In my view, this Application must be dismissed as abandoned and as an abuse of the Tribunal’s process.

14I cannot agree that there is any legitimate basis for the applicant’s claim of bias. The basis for the applicant’s bias claim appears to be the fact that he disagreed with (1) my Order that he provide the respondent with certain relevant particulars and (2) my ruling that the respondent was permitted to redact certain information from documents produced to the applicant due to its concerns about confidentiality referred to above. A party’s disagreement with the rulings of a Tribunal, without more, does not lead to a reasonable apprehension of bias. This is especially the case when one considers the many decisions reviewed above in which I denied the respondent’s requests for early dismissal of this Application.

15I fully agree with, and endorse, the following words of the former Chair of the Tribunal in Ouwroulis, above at paras 5-7:

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.

16It is regrettable that the applicant’s conduct in this case has caused the respondent to expend resources preparing for, and attending, a hearing that I believe the applicant had no intention of attending. Likewise, it is regrettable that the Tribunal’s scarce resources and hearing time have been spent on this case when they could have been more appropriately deployed elsewhere. I agree with the respondent that the applicant has shown a clear disregard for, and has abused, the Tribunal’s process.

17One of the most fundamental responsibilities of parties to an application before the Tribunal is to appear for a hearing. The applicant did not do so and it is clear from the fact that he did not request time off work to attend the hearing that he had no intention of attending the hearing. Although the applicant claimed to not have abandoned his case, in effect that is what he did by not appearing for the hearing. Moreover, he waited to advise the Tribunal and the respondent late enough to ensure that both the Tribunal and the respondent spent time preparing for, and attending, the hearing. I find that his actions in this case amount to an abuse of the Tribunal’s process and that his Application should be dismissed on that basis.

Confidentiality of Documents

18The applicant should take note that Rule 3.3 of the Tribunal’s Rules of Procedure (“Rules”) codifies the implied undertaking rule. It states:

3.3 Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.

19The respondent has produced various documents to the applicant in accordance with its obligation to do so under the Tribunal’s Rules. Pursuant to Rule 3.3, the applicant is prohibited from using any document obtained in this proceeding for any purpose other than the proceeding itself.

Order

20The Application is dismissed as abandoned and as an abuse of process.