CITATION: Eisenberg v.

Seneca College of Applied Arts and Technology, 2012 ONSC 4802

DIVISIONAL COURT FILE NO.: 93/12
DATE: 20120821

ONTARIO

2012 ONSC 4802 (CanLII)

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SWINTON, NORDHEIMER AND CONWAY JJ.

BETWEEN: )
)
IAN EISENBERG ) In Person
)
Applicant )
)
– and – )
)
SENECA COLLEGE OF APPLIED ARTS ) Ann E. Burke, for the Respondent, Seneca
AND TECHNOLOGY, CHERYL BAIN, ) College of Applied Arts and Technology
AL WOODWARD and the HUMAN )
RIGHTS TRIBUNAL OF ONTARIO ) Brian A. Blumenthal, for the Respondent,
) Human Rights Tribunal of Ontario
Respondents )
)
)
) HEARD at Toronto: August 21, 2012

NORDHEIMER J. (ORALLY)

[1] 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.
 Page: 2

[2] The 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

2012 ONSC 4802 (CanLII)

against him on the basis of disability in the provision of services.

[3] The 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.

[4] On 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.

[5] Subsequent 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.

[6] On January 3, 2012, the applicant responded to the Tribunal and advised that he would

not provide dates until his request for documents was answered.
 Page: 3

[7] On 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

2012 ONSC 4802 (CanLII)

dates for the summary hearing. The applicant was warned that a failure to provide dates might

result in his complaint being dismissed as abandoned.

[8] On February 1, 2012, the applicant called his case officer at the Tribunal and advised that

he would no longer correspond with the Tribunal.

[9] On 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] 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] 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.

[12] Before 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
 Page: 4

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

2012 ONSC 4802 (CanLII)

should proceed given the issues raised. There is no basis to interfere with that decision.

[13] Given 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] The application for judicial review is dismissed.

SWINTON J.

[15] 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.”

NORDHEIMER J.
 Page: 5

SWINTON J.

2012 ONSC 4802 (CanLII)

CONWAY J.

Date of Reasons for Judgment: August 21, 2012

Date of Release: August 23, 2012
 CITATION: Eisenberg v. Seneca College of Applied Arts and Technology, 2012 ONSC 4802
DIVISIONAL COURT FILE NO.: 93/12
DATE: 20120821

2012 ONSC 4802 (CanLII)

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

ORAL REASONS FOR JUDGMENT

NORDHEIMER J.

Date of Reasons for Judgment: August 21, 2012

Date of Release: August 23, 2012