AM v. Kellock, 2017 HRTO 1274

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

AM Applicant

-and-

Neil Kellock Respondent

INTERIM DECISION

Adjudicator: Bruce Best Date: September 27, 2017 Citation: 2017 HRTO 1274 Indexed as: AM v. Kellock

APPEARANCES

AM, Applicant Megan Evans Maxwell, Counsel

Neil Kellock, Respondent Self-represented

Introduction

1This Interim Decision addresses the individual respondent’s Request to participate at the hearing of this Application, despite having taken no steps to respond or otherwise participate in the Tribunal’s process for two years.

2For the reasons below, the Request is refused. The individual respondent has not provided any basis on which to permit him to now participate in the hearing of this matter. However, as the applicant is now seeking to amend her remedy beyond what she sought in the original Application, I am prepared to give the individual respondent an opportunity to file written submissions limited to addressing the amendments sought by the applicant in her Request of August 4, 2017.

Background

3This Application was filed on July 10, 2015 against Windermere Manor Ltd., the University of Western Ontario, and Neil Kellock, the individual respondent. The individual respondent did not file a Response to the Application after being warned several times of the consequences of not doing so, and was noted in default in AM v. Windermere Manor Ltd., 2015 HRTO 1748 (the “December 2015 Decision”), which ordered, at para 9:

For the reasons set out above, I make the following order:

a. The individual respondent is deemed to have accepted all of the allegations set out in the Application; and

b. The individual respondent is deemed to have waived all rights to notice or participation in these proceedings.

c. The individual respondent is not entitled to further notice with respect to the Application.

4On March 4, 2016 the matter was settled as between the applicant and the two organizational respondents. Notice of the fact of settlement was sent to all the parties, including the individual respondent.

5Further to a Case Assessment Direction (“CAD”) dated April 13, 2016, a conference call was held to address procedural issues respecting how the Application against the individual respondent would proceed. Following that conference call, another Case Assessment Direction was issued on July 20, 2016, setting out details respecting the hearing, including the evidence the applicant was intending to present. The individual respondent, though sent a copy of this CAD, still took no steps to indicate any intention to take part in the proceedings.

6On August 4, 2017, the applicant filed a Request to Amend her Application in accordance with paragraph 7.g of the July 2016 CAD. The Request to Amend further indicated that the applicant would be seeking additional damages based on lost wages from September 2014 to the date the Tribunal issues a final decision.

7On August 15, 2017, applicant’s counsel received an email from the individual respondent indicating that he was now intending to file materials and participate in the hearing. The individual respondent did not send this email to the Tribunal. Counsel for the applicant promptly contacted the Tribunal with respect to the correspondence asking for direction.

8I issued a CAD on August 18, 2017, noting that the individual respondent had, in December 2015, been deemed to have accepted all of the allegations and to have waived all his rights to participate further in the proceedings. I directed that if the individual respondent wished to now participate, he had to make a Request for an Order During Proceedings by filing a Form 10 in accordance with Rule 19 of the Tribunal’s Rules of Procedure. I further directed that the individual respondent must provide details in his Request indicating why had failed to take any steps to respond to the allegations to date, and must set out the basis on which he believes he should be permitted to participate. I also gave the applicant an opportunity to file submissions in response.

9The individual respondent filed a Request, which stated only that he did not realize he was not allowed to participate and be at the hearing, and that he was not in a position to afford legal help.

10The applicant filed a response to the Request, noting that the individual respondent had not provided any explanation for his failure to participate. She further set out in detail the chronology of this proceeding and the individual respondent’s ongoing failure to take any steps to respond.

11First, the applicant notes, as set out in the December 2015 Decision, that the individual respondent was given numerous opportunities to respond to the Application in the fall of 2015, but failed to do so. He has not provided any explanation for his failure to respond to the Application.

12The applicant also notes that the individual respondent has also been given further notice of what has since transpired in the Application. He was sent the Notice of Mediation in February, 2016, and made no attempt to participate. He received notice, by CAD dated April 13, 2016, that the applicant had settled with the organizational respondents, and that a case management conference call was being arranged to address how the Application would proceed against him alone. He was provided with the details respecting the case management conference call that took place on July 19, 2016, and made no attempt to participate. He received a copy of a CAD issued on July 20, 2016 setting out the results of the conference call, including details respecting the evidence the applicant intended to call and that she would be seeking to amend the remedy sought, and he again made no attempt to participate.

13In preparation for the hearing, the applicant served the individual respondent with a Request seeking disclosure of relevant documents from the London Police Service. He did not respond to the request. I issued Interim Decision, 2017 HRTO 908, dated July 20, 2017, which was required in part because the individual respondent was not participating in the proceedings and did not respond to the earlier request, and disclosure of the documents by the London Police Service required either the individual respondent’s consent or an order of the Tribunal.

14The applicant then served the individual respondent with her arguably relevant documents pursuant to Rule 16.1 of the Tribunal’s Rules of Procedure, and with the Request to amend the remedy sought. For the first time in these proceedings, on August 15, 2017, over two years after the Application was initially delivered, the individual respondent contacted the applicant, and indicated that he now intended to participate at the hearing.

15Further to my August 18, 2017 CAD, a conference call was held on September 19, 2017 to address the individual respondent’s Request to participate.

16At the conference call, the individual respondent did not dispute that he had received the materials addressed above, including the Application and the December 2015 Decision deeming him to have accepted the allegations. I asked him to explain why he had not taken any steps to respond to or otherwise participate in the proceedings for over two years. He provided no explanation, other than saying “my fault, my ignorance.”

17The applicant argued that permitting the individual respondent to participate at this late date would be significantly prejudicial to her. He has not indicated what position he takes with respect to the allegations raised, and if he were to be permitted to proceed now would require the hearing date to be adjourned, delaying the determination of the Application. She argues that permitting him to participate at this point would frustrate the objects of the Code, and would prevent a fair, just and expeditious resolution of the merits of the Application.

Decision

18The individual respondent is not entitled to participate in the hearing of this matter. He may, however, file written submissions with respect to the applicant’s Request to Amend the remedy sought, filed on August 4, 2017.

Request to Participate at Hearing

19The only reason the individual respondent has given for not taking any steps to participate in these proceedings is his ignorance of the process. Being unaware of the legal or procedural requirements is an issue that arises frequently in legal proceedings. It is not, in and of itself, an excuse. For example, an individual who does not pursue a matter within the required limitation period cannot use the excuse that they were simply unaware of the law, and the Tribunal routinely dismisses applications because they were filed out of time.

20If ignorance of the law is not an excuse in such cases, it is even less of an excuse for a respondent who has received documents from the Tribunal, which contain clear warnings about the failure to file a Response or to participate in the proceedings.

21I acknowledge, as noted in Dorohoi v. Teletech, 2009 HRTO 927 at para. 6, that proceeding in the absence of a party is an extremely serious step. However, where a respondent has, despite being given clear and repeated warnings, and without a reasonable explanation, not participated and been deemed to have accepted the allegations, and to have forfeited the right to participate in the proceedings, the respondent should not be able to show up at the 11th hour and expect to be heard. See Kearns v. 1327827 Ontario, 2009 HRTO 457, at paras 11-13, and M.K. v. 1217993 Ontario, 2011 HRTO 1362.

22I also note that the fact that the individual respondent may not participate does not mean the Application will therefore be successful. The onus is still on the applicant to put forward the evidence to establish her case on the balance of probabilities.

Applicant’s Request to Amend Remedy

23As noted, the Applicant filed a Request on August 4, 2017 to increase the remedy beyond what was originally sought in the Application. No decision has been made on that Request. I am prepared to permit the individual respondent to file written submissions in response to the August 4, 2017 Request.

24As the individual respondent has been deemed to accept the allegations in the Application, and has been deemed to have waived his right to participate in the proceedings, this also includes that, should liability be found, a decision respecting remedy may also be found in his absence based on the personal monetary and non-monetary remedies sought in the Application, and any public interest remedies the Tribunal considers appropriate, whether sought in the Application or not, as provided under s. 45.2(2)(b) of the Code.

25However, given that the applicant is now seeking to increase the remedy sought beyond that in the original Application, it would be unfair to not give the individual respondent an opportunity to provide written submissions with respect to the August 4, 2017 request.

Filing of Documents and Witness Statements

26Given the respondent’s Request, the applicant has yet to deliver and file her documents and witness statements in accordance with Rules 16 and 17. She is directed to do so by October 6, 2017.

Order and Directions

27The individual respondent may, no later than October 6, 2017, file submissions in response to the applicant’s August 4, 2017 Request to Amend the remedy.

28The individual respondent’s request to otherwise participate in this proceeding is dismissed.

29The applicant shall deliver and file her documents and witness statements in accordance with Rules 16.2, 16.3 and 17 by October 6, 2017.