Fuller v. Ontario (Ministry of Community Safety and Correctional Services), 2017 HRTO 1053

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Clayton Fuller

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: August 14, 2017

Citation: 2017 HRTO 1053

Indexed as: Fuller v. Ontario (Ministry of Community Safety and Correctional Services)

APPEARANCES

Clayton Fuller, Applicant

No one appearing

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services, Respondent

Indira Sawh, Counsel

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), but failed to appear for a summary hearing. I issued an oral decision dismissing his Application with written reasons to follow. The following are my reasons.

2On December 22, 2015, the applicant filed an Application, which alleged that the respondent subjected him to discrimination and reprisal with respect to services.

3On June 3, 2016, the respondent filed a Response to the Application, which denied the allegations of discrimination and reprisal. The respondent also filed a Request for Summary Hearing.

4On August 11, 2016, the Tribunal issued a Case Assessment Direction, which directed that a summary hearing be held.

5On February 17, 2017, the Tribunal issued a Notice of Summary Hearing to the parties, which informed them that the hearing was scheduled for March 27, 2017.

6On February 21, 2017, the respondent’s counsel sent the Tribunal and the applicant an email, which requested that the summary hearing be rescheduled because she was not available on March 27, 2017. The request was made in accordance with the Tribunal’s Practice Direction: Scheduling of Hearings and Mediations, Rescheduling Requests, and Request for Adjournments. The Practice Direction provides that requests to reschedule a hearing must be made within 14 days of receiving the Notice.

7On March 21, 2017, the respondent’s counsel sent the Tribunal and the applicant an email, which stated that she was available on June 12, 13, 15, 16, and 19, 2017 for the rescheduled summary hearing.

8On March 21, 2017, the applicant sent the respondent’s counsel an email, which stated that he was available on all the above dates for the rescheduled summary hearing, but preferred June 12, 2017. The respondent’s counsel forwarded the applicant’s email to the Tribunal.

9On April 18, 2017, the Tribunal issued a Notice of Summary Hearing (the “Notice”) to the parties by email and regular mail, which informed them that the hearing was rescheduled for June 12, 2017 at 9:30 a.m. The Notice directed the parties to call a phone number and enter a conference identification number, both of which were provided in the Notice. The Notice also warned the parties that if they failed to attend the hearing, the Tribunal may take a number of steps, including dismissing the Application if the applicant failed to attend, or take any other action that the Tribunal considered appropriate. The Notice that was sent to the applicant was not returned to the Tribunal as undeliverable.

10On June 12, 2017, the respondent called into the summary hearing at the time that was set out in the Notice of Summary Hearing, but the applicant did not. The Tribunal’s standard practice where a party does not attend is to confirm in the Tribunal’s file that the Hearing Notice was sent to the missing party, and wait half an hour. If the party is still not present, the Tribunal proceeds in the party’s absence without further notice to that party. Where the applicant is not present, this will generally lead to the dismissal of the Application. See Edward v. Moda at Home, 2009 HRTO 568 at para. 2.

11I confirmed in the file that the applicant was aware of the summary hearing, and after waiting for half an hour, I dismissed the Application against the respondent because of his failure to appear for the hearing.

12The applicant commenced a legal proceeding when he filed his Application with the Tribunal, and he had a responsibility to attend the summary hearing and make submissions.

13Furthermore, 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 of Procedure. This duty is not only in relation to applicants, but also in relation to respondents, who may expend significant resources responding to human rights Applications, and to the public, whose tax dollars fund the Tribunal. In Ouwroulis v. New Locomotion, 2009 HRTO 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.

14The respondent expended significant resources responding to the Application, and preparing for and attending the summary hearing. The respondent is unable to recover any costs resulting from this process, including the applicant’s non-attendance at the hearing, because this Tribunal has no authority to award costs. See Dunn v. United Transportation Union, Local 104, 2008 HRTO 405. The Tribunal has also expended significant resources processing the Application, and scheduling and holding a hearing. In these circumstances, it would not be fair, just and expeditious to allow the Application to continue.

15The Application is dismissed.