Walsh v. General Motors of Canada Company, 2017 HRTO 1443

Human Rights Tribunal of Ontario

B E T W E E N:

Arthur Walsh

Applicant

-and-

General Motors of Canada Company

Respondent

DECISION

Adjudicator: Jennifer Scott Date: November 1, 2017 Citation: 2017 HRTO 1443 Indexed as: Walsh v. General Motors of Canada Company

APPEARANCES

Arthur Walsh, Applicant Self-represented

General Motors of Canada Company, Respondent David Bannon, Counsel

introduction

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, on January 11, 2016.

2On October 14, 2016, the Tribunal issued an interim decision, 2016 HRTO 1329, (the “Interim Decision”), dismissing much of the Application on the basis that the applicant was seeking to re-litigate a 2013 Application that he had filed. The Tribunal allowed the Application to proceed on the allegation that the respondent failed to accommodate the applicant’s disability when he returned to work in July or August 2015. The applicant was directed to file an amended Application setting out the details as to how the respondent failed to accommodate his disability when he returned to work in 2015. The applicant was directed to not file any documentation with the amended Application.

3The applicant did not file an amended Application as directed. Instead, he filed a Request for Reconsideration. In the Request for Reconsideration, the applicant provided information regarding the respondent’s alleged failure to accommodate his disability when the applicant returned to work in 2015.

4On November 10, 2016, the Tribunal issued a Case Assessment Direction advising the parties that it would accept the applicant’s Request for Reconsideration as the applicant’s amended Application as it did not appear to be a Request for Reconsideration. The respondent was directed to file a Response to the amended Application, as set out in the Request for Reconsideration, within 30 days of the Case Assessment Direction.

5Contrary to the Tribunal’s direction in the Interim Decision to not send documentation, the applicant continued to send numerous faxes, forms and documents to the respondent. As a result of the applicant’s communications with the respondent, it became unclear as to what information constituted the applicant’s amended Application. The respondent provided copies of the applicant’s communications to the Tribunal on November 15, 2016.

6The Tribunal contacted the parties to arrange a case management conference call in order to provide direction to the applicant regarding his filings with the respondent and to obtain clarity on the nature of the allegations before the Tribunal. The applicant advised the Tribunal that he was not available to attend the case management call until January 2017.

7On November 29, 2016, the Tribunal issued a Notice of Case Management Conference Call to the parties confirming that the conference call would take place on January 23, 2017 at 9:30 a.m. The Notice of Case Management Conference Call advised that applicant that if he failed to attend the conference call, the Tribunal could proceed in his absence or dismiss the Application as abandoned.

8The applicant did not attend the Case Management Conference Call. The Application was dismissed as abandoned on the Case Management Conference Call. The dismissal was confirmed by decision dated January 24, 2017, 2017 HRTO 99, (the “Abandonment Decision”).

9On January 30, 2017, the applicant filed a Request for Reconsideration of the Abandonment Decision. The applicant stated he had lost the paperwork for the conference call because he had been in the process of moving and had been ill. He stated that he contacted the Tribunal on January 23, 2017 to obtain the conference call and ID number for the call, and attempted to connect at 10:00 a.m. and 10:15 a.m., but no one was on the call. The applicant stated he had not abandoned the Application.

10By decision dated March 16, 2017, 2017 HRTO 329, (the “Reconsideration Decision”), I allowed the applicant’s Reconsideration Request. The applicant had attempted to connect to the Case Management Conference Call, albeit late, and I could not find that he had abandoned the Application. In the Reconsideration Decision, I warned the applicant that if he continued to ignore the Tribunal’s directions, his Application could be dismissed as an abuse of process and/or on the basis of vexatious conduct.

11In the Reconsideration Decision, I ordered the applicant to file a new Application relating to the 2015 allegations of discrimination and gave the following directions:

By March 31, 2017, the applicant must do the following:

File a new Application (Form 1). In question 8, the applicant should set out the facts as to how General Motors failed to accommodate his disability when he returned to work in July or August 2015. He should include what happened, who was involved, when it happened and where it happened. The applicant should not include allegations relating to his employment in 2013. The 2013 allegations are not before the Tribunal.

The applicant should not include documentation, such as medical reports or notes, with the new Application.

The applicant should not send written correspondence to the respondent or to the Tribunal regarding his allegations of discrimination. The amended Application is the only document that should contain these allegations.

12On April 24, 2017, the applicant filed a new Application. In question 7 - location and date - the applicant stated:

You have a file full, I sent you all documents from [ineligible] everytime. Supervisor would get copy stating no bending, company management put pressure on plant doctor to try and convince me there was no difference in job I was doing compared to jobs [ineligible], and I can tell you there is a huge difference.

I have no idea when this incident occurred, what jobs were involved, who was involved, etc. I do not know whether these allegations relate to 2015 or whether they relate to the earlier 2013 Application.

13In paragraph 8 - what happened - the applicant stated:

forced bending when all treated doctor I saw [ineligible] using my mental illness to exploit non accommodation, explains also exploitation of friendship to confuse me on my application. They know I was ill and used friendship to … convince me to withdraw application on basis of false promise.

This allegation appears to relate to the 2013 Application as that was the Application that was withdrawn.

14The following information was attached to the new Application:

1. driving no bending – everyone knows that also in inspection jobs no bend like I was doing car start

2. and what I mean about taking advantage of mental illness, was when a person is not there best mind games were played. Whole lower seniority on jobs I can do and I gave you [ineligible] seniority list to show that

3. for example why would you put a guy with high seniority on job with repetitive bend basically set for failure and hide low seniority on jobs I can do. I tell you nepotism, and that’s the truth

Again, I have no idea when this occurred, what jobs were involved, who was involved, etc. I do not know whether these comments relate to things that happened in 2013 or 2015.

15On May 4, 2017, the respondent filed a Request for Order During Proceedings seeking a dismissal of the Application on the basis that the applicant failed to comply with my directions relating to filing a new Application. The respondent submitted it was impossible for it respond to vague, unspecified allegations which, once again, appeared to relate to the time period which the Tribunal ruled was not at issue.

16By Case Assessment Direction dated July 5, 2017, I directed that a half-day hearing would take place to hear the parties’ submissions on whether the Application should be dismissed as an abuse of process. I advised the parties that the hearing would address the applicant’s conduct throughout this Application.

17On October 23, 2017, a teleconference hearing took place to hear the parties’ submissions on the respondent’s dismissal request. During the hearing, the applicant stated that he had provided documentation to substantiate his allegations and asked me to go through it. He stated he had complied with my directions. In response to a submission from respondent’s counsel that the applicant was still relying upon 2013 allegations, the applicant stated 2013 allegations should be included because they are all connected. The applicant’s main submission was that he had provided a seniority list to respondent’s counsel to show that he had not applied for jobs for which he was not eligible because of seniority.

analysis

18The Tribunal has the power, pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (“SPPA”), to make such orders or give such directions in proceedings before it as it considers proper to prevent abuses of its process. This power includes the right to dismiss an application where it is necessary to prevent an abuse of process.

19The authority to dismiss an Application as an abuse of process is also reflected in the Tribunal’s Rules of Procedure.

A8.1 The tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

20The applicant has repeatedly disregarded my decisions and directions. He was first directed to file an amended Application for the 2015 allegations and he filed a Request for Reconsideration instead. The Request for Reconsideration was accepted as his amended Application, however, the applicant refused to follow my direction not to file documentation. He continued to file documentation to the point that the respondent was unable to discern his allegations of discrimination. A case management conference call was set to clarify his allegations and he failed to attend the call on time. He was then directed once more to file a new Application and to answer specific questions: how did the respondent fail to accommodate the applicant in July and August 2015: what happened, who was involved, when did it happen and where did it happen? The applicant refused to answer these questions.

21The Tribunal has commented on the responsibilities of parties appearing before it. In Ouwroulis v. New Locomotion, 2009 HRTO 335, at para. 7, the Tribunal reaffirmed a party’s obligation to comply with Tribunal rules and directions. In that case, the Tribunal stated that a party who does not respond to Tribunal directions, risks having the application dismissed.

22The applicant was warned that his failure to abide by the Tribunal’s directions put him at risk of having the Application dismissed as an abuse of process. Despite these warnings, his conduct continued.

23The doctrine of abuse of process is a preventative tool which allows the Tribunal to dismiss an application in circumstances where to carry on with the proceeding would bring the administration of justice into disrepute. An abuse of process can happen in a number of ways, including where an applicant repeatedly refuses to comply with the Tribunal’s directions. Where the failure to comply with the Tribunal’s directions prevents the Tribunal from exercising its statutory mandate to deal with an application in a fair manner, the application may be dismissed as an abuse of process because to continue in those circumstances would bring the administration of justice into disrepute. See Danso v. Regional Municipality of Peel Police Services Board, 2017 HRTO 807 at para. 11.

24The applicant has refused to set out his 2015 allegations in sufficient detail to permit the respondent to respond. The applicant appears to believe that it is sufficient for him to file voluminous documentation and it is up to the respondent and the Tribunal to comb through the documentation in order to discern the 2015 allegations. The applicant is incorrect in this belief. The applicant is required to describe his allegations with enough detail to allow the respondent to respond and to enable the Tribunal to understand the discrimination that is being alleged. He has failed to do so in this case despite being given numerous opportunities.

25The applicant has not complied with my directions because he does not accept my decision that the 2013 allegations are not before me. He has continued to assert vague allegations that could relate to any period of time and has steadfastly refused to explain how the respondent failed to accommodate him in 2015. His conduct has derailed the proceeding to the point that it has become manifestly unfair to the respondent and has prevented me from exercising my statutory mandate to deal with the Application in a fair, just and expeditious manner. To continue in these circumstances would bring the administration of justice into disrepute. For these reasons, the Application is dismissed as an abuse of process.

order

26The Application is dismissed.