Eisenberg v. Seneca College of Applied Arts and Technology, 2012 ONSC 4802

CITATION: Eisenberg v. Seneca College of Applied Arts and Technology, 2012 ONSC 4802

DIVISIONAL COURT FILE NO.: 93/12

DATE: 20120821

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SWINTON, NORDHEIMER AND CONWAY JJ.

BETWEEN:

IAN EISENBERG

Applicant

– and –

SENECA COLLEGE OF APPLIED ARTS AND TECHNOLOGY, CHERYL BAIN, AL WOODWARD and the HUMAN RIGHTS TRIBUNAL OF ONTARIO

Respondents

In Person

Ann E. Burke, for the Respondent, Seneca College of Applied Arts and Technology

Brian A. Blumenthal, for the Respondent, Human Rights Tribunal of Ontario

HEARD at Toronto: August 21, 2012

NORDHEIMER J. (orally)

[1]

Background

The applicant seeks judicial review of the decision of the Human Rights Tribunal of Ontario dated February 14, 2012 in which the Tribunal dismissed the applicant’s complaint as abandoned.

2The applicant was enrolled in the paralegal program at Seneca College. On June 15, 2010, the applicant complained to the Human Rights Tribunal that the College had discriminated against him on the basis of disability in the provision of services.

3The College responded to this complaint and sought a dismissal of it on the basis that the complaint was not filed in a timely fashion and that certain of the allegations made by the applicant were outside the jurisdiction of the Tribunal. The applicant then sought the direction of the Tribunal that the College produce certain documents.

4On May 17, 2011, the Tribunal directed that a summary hearing be held. The rules of the Tribunal permit it to direct a summary hearing to determine if a complaint should be dismissed because it stands no reasonable chance of success. As stated by the Tribunal in its decision:

… a summary hearing is not intended to be a process in which an applicant leads evidence through oral testimony, documents or the testimony of other witnesses. It is a process in which an applicant identifies the evidence that he or she has or that may be reasonably available and makes arguments as to why the applicant believes that this evidence shows that his or her Application has a reasonable prospect of succeeding.

5Subsequent to this direction, the Tribunal, in accordance with its normal practice, advised the applicant that his request for documents would be addressed after the summary hearing had been determined. Thereafter the Tribunal sought dates from both parties for the summary hearing.

6On January 3, 2012, the applicant responded to the Tribunal and advised that he would not provide dates until his request for documents was answered.

7On January 27, 2012, the Tribunal reiterated to the applicant that his request for documents would be dealt with after the summary hearing was held and repeated its requests for dates for the summary hearing. The applicant was warned that a failure to provide dates might result in his complaint being dismissed as abandoned.

8On February 1, 2012, the applicant called his case officer at the Tribunal and advised that he would no longer correspond with the Tribunal.

9On February 14, 2012, the Tribunal released its decision in which it dismissed the applicant’s complaint as abandoned since the applicant had not provided dates for the summary hearing.

[10]

Standard of Review

In terms of this application for judicial review, we begin by stating that the test for this application is whether the decision of the Tribunal was reasonable in the circumstances. In that regard, we note that the procedural issues involved are ones that fall within the ambit of the Tribunal’s right to regulate its own process.

[11]

Analysis

We do not consider it necessary or advisable to comment on the substantive allegations made by the applicant that underlie his complaint to the Tribunal. It is important to remember that the issue in this application is not the merits of the complaint. Rather, it is whether the Tribunal acted reasonably in dismissing the applicant’s complaint in light of the actions of the applicant in response to the Tribunal’s decision to convene a summary hearing.

12Before addressing that issue, however, we feel compelled to address the applicant’s concerns regarding the departure of Vice Chair Liang who directed that the summary hearing be held. The applicant submits the Tribunal ought to have revisited that direction once the Vice Chair was no longer a member of the Tribunal. We see no merit to that submission. The Vice Chair made a reasonable procedural decision at the time as to how the applicant’s complaint should proceed given the issues raised. There is no basis to interfere with that decision.

13Given the reaction of the applicant to the Tribunal’s decision to hold such a hearing and his refusal to co-operate in its scheduling, we are of the view that the Tribunal acted reasonably in dismissing his complaint. Indeed, we do not see that the Tribunal had any realistic alternative but to do so. The Tribunal was entitled to hold a summary hearing. The Tribunal was also entitled to postpone any ruling on the applicant’s request for documents until the summary hearing was held. The applicant’s unilateral refusal to provide dates for the summary hearing effectively thwarted the Tribunal’s process. If the applicant was not prepared to co-operate with the Tribunal in its process, the Tribunal was entirely within its rights to dismiss the applicant’s complaint.

[14]

Disposition

The application for judicial review is dismissed.

SWINTON J.

[15]

Costs

I have endorsed the Appeal Record, “The application is dismissed for oral reasons delivered in Court today. The Tribunal does not seek costs. Costs to the respondent Seneca College fixed at $2,500.00 inclusive of HST and disbursements.”