Mark Belen v. Conestoga Cold Storage, 2017 HRTO 1561

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Belen

Applicant

-and-

Conestoga Cold Storage

Respondent

DECISION

Adjudicator: Naomi Overend Date: November 27, 2017 Citation: 2017 HRTO 1561 Indexed as: Belen v. Conestoga Cold Storage

APPEARANCES

Mark Belen, Applicant No one appearing

Conestoga Cold Storage, Respondent Bettina Burgess, Counsel

BACKGROUND

1On April 24, 2017, the Tribunal issued a Notice of Application (“the Notice”) to the respondent in which it directed the respondent to file a Response. The respondent then engaged in settlement discussions with the applicant’s then representative and Minutes of Settlement, dated July 11, 2017, were entered into.

2The Minutes required the applicant to “immediately proceed to withdraw his Application” and provide confirmation to counsel for the respondent that he had started the process of withdrawal. On July 17, 2017, the applicant signed the Minutes and also a release stating he was releasing the respondent from all claims.

3On June 5, 2017 (i.e., prior to the Minutes being signed), the Tribunal issued a “No Response to Notice of Application” letter to the parties advising them of the consequences of the failure to file a Response, and citing Rule 5.5 of the Tribunal’s Rules of Procedure. It did not hear from the parties in response to this, and on September 29, 2017, issued an Interim Decision noting the respondent in default and advising it that it was not entitled to further notice of any proceedings. The Tribunal was unaware of the settlement at the time this Interim Decision was issued.

4This Interim Decision advised the applicant that the Tribunal would schedule a conference call to determine how he wished to proceed in light of the ruling. A Notice of Conference Call was sent to the applicant’s representative on October 3, 2017, setting up a teleconference call on October 26, 2017.

5Upon receipt of the Interim Decision, counsel for the respondent contacted the applicant’s representative, who in turn contacted the Tribunal to advise it that a settlement had been reached. The applicant’s representative advised the respondent’s counsel that the Tribunal had advised her that the parties should send in a Form 25 (Confirmation of Settlement). The applicant’s representative sent a Form 25 to the respondent, which it signed on October 11, 2017. However, the applicant’s representative was unable to make contact with her client and so the Form 25 was not signed by him.

6The respondent’s counsel wrote to the Tribunal on October 19, 2017, and was advised to participate in the upcoming October 26, 2017 teleconference call. At that call, the applicant’s representative advised me that she had still not been able to reach her client despite multiple efforts. She confirmed the respondent’s information about the process thus far, including the fact that the applicant had received the funds from the settlement.

7In light of the fact that she was not able to get instructions from her client, I allowed the applicant’s representative to withdraw from the case. I was concerned that the applicant was unaware of the proceedings and so did not ask the parties to make submissions about abuse of process on this teleconference call.

8The Tribunal sent the parties a notice entitled “Full and Final Settlement/Release Opportunity to Provide Oral Submissions,” setting up a further teleconference for November 8, 2017. This notice was sent to the applicant via email and regular mail. The applicant did not connect with the teleconference, nor did he advise the Tribunal that he was unable to do so. I am satisfied that he has had sufficient notice and that he no longer wishes to engage in the process.

9In light of this sequence of events, I have reconsidered my finding that the respondent was in default. Moreover, I find that to proceed with this matter would be an abuse of process. The terms of the Minutes required the applicant to immediately withdraw this Application. He did not do so. Even if this were inadvertence on his part, his subsequent failure to engage in the process or otherwise communicate with his representative or the Tribunal, despite multiple attempts to get him to participate, has needlessly wasted both the respondent’s and the Tribunal’s resources.

ORDER

10For the reasons set out above, I make the following order:

a. The prior finding made by the Tribunal in its September 29, 2017 Interim Decision noting the respondent in default is set aside, as are the terms of the Order in that Interim Decision; and

b. The Application is dismissed.