Burkett v. Red Hill Co-Operative Homes Inc., 2016 HRTO 932

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darlene Burkett

Applicant

-and-

Red Hill Co-operative Homes Inc., Bridget Bayliss and The Agency for Cooperative Housing

Respondents

DECISION

Adjudicator: Naomi Overend

Date: July 15, 2016

Citation: 2016 HRTO 932

Indexed as: Burkett v. Red Hill Co-Operative Homes Inc.

1The hearing of this case was scheduled to begin on April 29, 2016, in Hamilton. On April 5, 2016, I held a case management conference call with the parties to discuss, among other things, whether the applicant’s health permitted her to participate in the upcoming hearing. The applicant did not provide a definitive response to this question on the call, and so I issued a follow-up Case Assessment Direction (“CAD”) on April 6, 2016, in which I directed the applicant to file a Request for an Order During Proceedings (Form 10) if she was seeking an adjournment.

2The applicant wrote in an email on April 14, 2016 that she “will be adjourning the Hearing due to health concerns.” Contrary to the explicit directions set out in the CAD, she did not file a Form 10 request. The Case Processing Officer wrote an email to the applicant that same day advising her that she is required to file a Form 10 if she wished to request an adjournment. The Tribunal heard nothing further from the applicant.

3I sent a further CAD to the parties on April 26, 2016 which states, in part:

The applicant suggests that she is going to the hospital for further tests, but does not say whether she was to be admitted as an in-patient, when this was to take place and how long she expected to be in hospital (if admitted). As pointed out by counsel for the respondents, there is no letter from a duly qualified medical professional stating that the applicant is unable to participate in the upcoming hearing for medical reasons.

In the absence of this information, the hearing will proceed as scheduled on April 29, 2016. The applicant is directed to advise the Tribunal and counsel for the respondents whether she is intends to attend and participate on this date. If the Tribunal does not hear from applicant by noon on Thursday, April 28, 2016, the Application may be dismissed as abandoned.

4When the Tribunal had not heard from the applicant by mid-afternoon on April 28, 2016, it dismissed this Application as abandoned. However, subsequent to the Decision being issued, the Tribunal discovered that someone on behalf of the applicant had faxed a letter advising the applicant was ill and requesting an adjournment. This letter was received by the Tribunal prior to issuing its Decision dismissing the Application as abandoned (although after the noon deadline).

5On its own motion, the Tribunal reconsidered its Decision. The Reconsideration Decision, which was issued on May 17, 2016, ordered certain things, including the following:

b. by May 31, 2016, the applicant is required to deliver to the Tribunal and respondent detailed submissions concerning her ability to proceed with a hearing;

c. these submissions must contain information about when the applicant might be able to proceed;

d. the information in these submissions must be supported by documentation from one or more medical practitioners; …

6In the meantime, counsel for the respondents wrote to the Tribunal (copied to the applicant) on May 17, 2016 to protest the reconsideration. He indicated that on April 28, 2016, the applicant had been seen by fellow residents of the respondent co-op, moving about the building on her scooter. It was his position that she was not too ill to proceed, contrary to the adjournment request made on her behalf.

7On June 23, 2016, counsel for the respondents wrote that he had not received further communication from anyone (including the applicant) since the Reconsideration Decision was issued and he presumed the Application was dismissed. This letter was copied to the applicant at her email address. She has not replied to this or the earlier letter. Moreover, she has not otherwise communicated with the Tribunal. She is in breach of the specific orders found in the Reconsideration Decision.

8In the circumstances, the Tribunal finds that the applicant has abandoned her Application. The Application is dismissed.