Coutts v. Toronto Transit Commission, 2017 HRTO 1596

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Scott Coutts

Applicant

-and-

Toronto Transit Commission

Respondent

DECISION

Adjudicator: David Muir

Date: November 30, 2017

Citation: 2017 HRTO 1596

Indexed as: Coutts v. Toronto Transit Commission

1This is an Application filed on February 24, 2015 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended. This Decision explains why this Application is deemed to have been abandoned and is dismissed.

2Part of the background was recorded for the parties in a Case Assessment Direction (“CAD”) issued on June 7, 2017.

This case is ready to be scheduled for hearing however the applicant has been reluctant to provide dates. On December 6, 2016 the Tribunal wrote to the applicant asking him to confirm that he intended to proceed with the Application. In this letter the applicant was offered dates in February and March 2017 for the hearing and was directed to respond by December 13, 2016. The applicant does not appear to have responded to this direction.

On February 2, 2017 the respondent wrote to advise that it had released the February and March dates.

On March the applicant’s spouse wrote to the Tribunal to advise that the applicant was unwell and that he could not participate in a hearing in his current state of health. The applicant did not indicate when he could participate in the process and did not provide any medical information to support his request.

The respondent objected to what it characterized as a request for an indefinite adjournment.

In a Case Assessment Direction issued on March 14, 2017 the Tribunal directed that this case would be held in abeyance for a further 21 days in order for the applicant to clarify his request that the hearing not be scheduled at this time. In particular the applicant was directed to provide the following:

i. Medical information which substantiates his claim that he cannot participate in the hearing at this time;

ii. If the applicant is unable to participate at present medical information which explains when he will be able to participate in a hearing;

iii. If the applicant does not file this material within 21 days of the date of this Case Assessment Direction the Tribunal will schedule a two day hearing without further consultation with the applicant.

The applicant did not comply with these Directions within the 21 day period. Instead approximately one month later the applicant sought a further extension to provide the information above.

On May 9, 2017 the respondent filed a Request for Order during Proceeding (“Request”) seeking Orders that the applicant be required to comply with the Tribunal’s Directions immediately or the Application be dismissed.

The applicant responded to the Request. In doing so he appears to have withdrawn his request to hold the Application in abeyance.

In the circumstances the Tribunal will defer consideration of the respondents May 9, 2017 Request. The Tribunal will proceed to schedule a two day hearing of this case in the Fall of 2017. The respondent may renew its Request if it believes it is appropriate to do so.

3Dates for the hearing were scheduled in October 2017. The hearing was rescheduled to December 13 and 14, 2017.

4In a further CAD issued on June 21, 2017 intended to assist the parties to prepare for the hearing I noted the following:

Having reviewed the pleadings to date I observe at this stage that the Response of the respondent appears to be a more or less complete answer to the allegations in the Application. Some of these assertions will likely require evidence from the respondent but in the absence of a substantive Reply from the applicant it is not clear which if any of these assertions are in dispute. The extent to which there are factual issues in dispute can have a significant impact on the scope of evidence required at the hearing.

As noted above the applicant has not responded to the Response in any meaningful way. Rule 9. 1 of the Tribunal’s Rules of Procedures provides as follows:

9.1 An Applicant who intends to prove a version of the facts different from those set out in a Response must deliver and file a Reply in Form 3 setting out the different version, unless it is already contained in the Application. An Applicant may also reply to any other matter raised in the Response.

In the absence of a Reply which addresses the factual assertions of the respondent, the Tribunal is prevented from making appropriate directions with respect to the conduct of the hearing and what evidence it will need to hear amongst other matters. The applicant will be required to respond to these assertions at the hearing so there is no hardship in being required to disclose in advance his detailed responses to the respondent’s allegations in advance of the hearing.

5The applicant was directed to deliver and file a Reply addressing the Response within 28 days of the date of the June 21, 2017 CAD.

6The applicant did not respond to this Direction. On July 21, 2017 the applicant wrote to the Tribunal and requested an extension and appeared to indicate that he did not intend to comply with the Tribunal’s directions to answer the Response with a Reply. Despite this advice the applicant was granted an extension until August 28, 2017. The applicant did not comply with the Tribunal’s Directions.

7The applicant had also not complied with his obligations in with Rules 16 and 17 of the HRTO’s Rules of Procedure regarding pre-hearing disclosure of documents and witnesses.

8As the Tribunal notified the parties in the June 20, 2017 final Notice of Hearing, under Rules 16 and 17 of the HRTO’s Rules of Procedure, the parties were obliged to provide the following things to one another and to the Tribunal by no later than August 28, 2017:

a. a list of the witnesses they intend to call at the hearing of the Application;

b. witness statements describing what the witnesses will say when they testify; and

c. copies of the documents they intend to rely upon at the hearing.

9The respondent has provided their hearing materials and appears to be prepared to proceed to the hearing. The applicant has not complied in any fashion with the Tribunal’s Rules or Directions above.

10In a further CAD issued on November 17 the following Directions were made:

By no later than November 24 , 2017, the applicant must deliver to the respondent and file with the Tribunal a list of his witnesses and a statement describing what her witnesses will say when they testify as well as any documents she intends to rely upon at the hearing.

The applicant is directed again that he must also submit a witness statement for himself, assuming he intends to testify which addresses the issues raised in the Response and which should have been provided in response to the Tribunal’s Case Assessment Direction failing which the Application may be dismissed as abandoned.

11It is now almost two weeks after the final Directions made above. The applicant has not complied with these Directions and has not fulfilled his disclosure obligations under the Rules. The applicant has not sought a further extension of time nor has he sought an adjournment of the hearing. He has in fact not communicated with the Tribunal for some time.

12This Application was filed on October 14, 2015. The hearing, which has been rescheduled twice already and much delayed largely if not entirely because of the applicant’s non-participation can not proceed on the scheduled dates because of the applicant’s continuing failure to comply with the Tribunal’s Rules and Directions. The applicant has been advised more than once that failure to meet his obligations under the Rules may result in his Application being dismissed as abandoned. In my view the applicant has effectively abandoned this Application and for that reason it is dismissed.