HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
Sandra Boodhram
Complainant
-and-
2009158 Ontario Limited o/a A Buck or Two #342
and Robert Starmans
Respondents
INTERIM DECISION
Adjudicator: Michael Gottheil
Human Rights Tribunal of Ontario
400 University Avenue, 7th Floor
Toronto ON M7A 1T7
Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946
TTY (416) 314-2379 / 1-800-424-1168
E-mail hrto.registrar@jus.gov.on.ca
Website www.hrto.ca
INTRODUCTION
1This is a complaint brought under the Human Rights Code, R.S.O. 1990, c.H.19 as amended (“the Code”), alleging an infringement of sections 5(1) and 9. The complaint was referred to the Human Rights Tribunal of Ontario (“the Tribunal”) on June 15, 2005.
2On July 13, 2005 the Tribunal held an Initial Conference Call pursuant to the Tribunal’s Rules of Practice 2004 (“the Rules”). Notice of the Initial Conference Call was provided to all parties. The respondents did not participate in the Initial Conference Call.
3By letter dated July 19, 2005, counsel for the Commission requested that the Tribunal proceed by way of written hearing. Counsel also requested that the Tribunal waive the requirement to file pleadings and provide disclosure to the other parties.
4This decision addresses the Commission’s request.
FACTS
5As set out above, this complaint involves a claim that the respondents engaged in certain conduct which is alleged to constitute discrimination on the basis of disability in employment and thus constitutes a violation of the complainant’s rights under the Code. The initial complaint was filed on or about July 22, 2003 and subsequently was referred to the Tribunal pursuant to Section 36(1) of the Code by letter dated June 15, 2005.
6In accordance with its Rules, the Tribunal proceeded to hold an Initial Conference Call (“ICC”) on July 13, 2005. Notice of that ICC was provided to all parties by way of a formal Notice dated June 21, 2005. That Notice read, in part:
NOTICE OF INITIAL CONFERENCE CALL
The Ontario Human Rights Commission has referred the Complaint of Sandra Boodhram dated July 22, 2003, to the Human Rights Tribunal of Ontario pursuant to the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The Tribunal received the referral on June 16, 2005.
The proceeding before the Tribunal will commence by Initial Conference Call on:
Date: July 13, 2005
Time: 9:30 a.m.
Important - If You Do NOT Participate in the Initial Conference Call
If you are not available to receive the conference call, either personally or through a representative, the call may proceed without your participation. You (or your representative) will receive a memorandum setting out the matters discussed during the call.
What To Do If You Cannot Participate in the Initial Conference Call
Your conference call has been scheduled to provide the maximum amount of advance notice to all parties. This conference call cannot be re-scheduled or adjourned to a later date. If you are unable to take the call from the telephone number shown above, the following options are available:
as this call may last anywhere from 20 minutes to 1 hour, see if it is possible to adjust your schedule so that you can be available for the call; OR
appoint someone to take the call in your place. Be sure to authorize the person to agree to the items listed below by giving them information from your schedule, as well as any other information that may be necessary to schedule the hearing (for example, your preference for hearing location or accommodation for a disability); OR
you may take the call from another telephone number by either dialing in to be connected or by having our operator connect you (a number will be given to you ahead of time), regardless of where you may be; OR
you may request the conference call to be re-scheduled to an earlier date, provided that you: a) obtain the consent of all other parties to the new date, b) call the Tribunal’s office to ensure that the new date is convenient to the Tribunal, and c) submit your request in writing as quickly as possible to allow Tribunal staff sufficient time to change the call arrangements.
What Will Be Discussed During the Initial Conference Call
The following matters will be discussed during the conference call:
confirmation of parties’ names and addresses and those of their representatives for purposes of service;
identifying any person(s) not already named in the Complaint who may be affected by the proceeding and should be given notice;
confirmation of dates for exchange of pleadings and disclosure as established by the Tribunal’s Rules;
where the parties consent, setting a mediation date;
where necessary, identifying and canvassing dates for argument of any preliminary motions;
canvassing dates for the hearing on the merits; and
identifying any accommodation needs (e.g., wheelchair access, etc.).
Tribunal’s Rules of Practice
Parties and Counsel who do not have a copy of our new Rules can download them from our website at www.hrto.ca or are welcome to call (416) 314-2079 or e-mail at hrto.registrar@jus.gov.on.ca and a copy will be sent to them. Please read these Rules carefully, as you will be expected to comply with them.
If you have any questions or require any additional information, please do not hesitate to call Nadia Jevremovic, Hearings Officer at (416) 314-8435.
7The respondents neither participated in the ICC nor did they contact the Registrar in advance of the ICC date to advise of their unavailability.
8The Tribunal proceeded with the ICC in the absence of the respondents. The Commission, with the consent of the complainant made a request that the Tribunal proceed by way of written hearing. The Commission also requested that the Tribunal waive the obligation to file pleadings and to provide disclosure. That request was subsequently reduced to writing in correspondence dated July 19, 2005.
9In the correspondence of July 19, 2005 the Commission set out various steps it had taken to locate and communicate with the respondents. It advised that the respondents had not participated in the Commission’s investigation process. The Commission indicated that it conducted a corporate search of the respondent 2009158 Ontario Limited operating as A Buck or Two #342 (the “corporate respondent”). It sent correspondence dated June 29, 2005 to the registered business address of the corporate respondent advising of the Tribunal’s process and enclosed the Notice of the Initial Conference Call. That correspondence was apparently returned with a notation - “Return to Sender – Moved.” (The Tribunal notes that it had not previously been advised of that address for the corporate respondent.)
10The Commission also advised that various searches for the individual respondent Robert Starmans revealed the address which was on record. Correspondence sent to that address apparently had not been returned as undeliverable. The Commission advised that it had made other inquiries, which it stated indicated that the respondents were attempting to avoid participating in the Tribunal’s process. Counsel for the Commission concluded that: “It is apparent to me that Mr. Starmans does not intend to take part in the Tribunal’s process.”
11In making the request that the Tribunal waive the requirement for pleadings and disclosure, the Commission wrote:
Delivery of a Statement of Facts and Issues, and disclosure under rule 41 would simply be a waste of time, paper and ink. The issues and evidence are manifest from the text of the complaint.
In respect of the request for a written hearing, counsel for the Commission wrote:
It would be an improvident use of the Commission’s resources, and the Tribunal’s resources, to conduct a hearing in person. Moreover, a hearing in person would require Ms. Boodhram to take time off work and travel to Toronto to give her evidence. As indicated in the conference call, Ms. Boodhram supports my request.
As you can see from the text of the complaint, this is not a complicated case. I propose to file the affidavit of Ms. Boodhram, which would contain the information required for the Tribunal to determine the issues in subsection 39(1) of the Code. I propose to file a brief written argument on behalf of the Commission in support of its position with respect to liability and remedy. Should the Tribunal request, I can file an affidavit of a Commission staff member, setting out the contact(s) with Mr. Starmans, so the Tribunal is satisfied that he has been notified of the complaint and the Tribunal’s hearing.
Proceeding as suggested would permit the Tribunal to carry out its statutory duty in the most efficient way…
12It does not appear that a copy of the Commission’s July 19, 2005 correspondence was sent to the respondents.
DECISION
13After considering the request made by the Commission, for the reasons set out in the Tribunal’s decision in Sanford (2005 HRTO 28), the Tribunal will issue a Notice of Written Hearing in accordance with section 6(4) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. (“the SPPA”). However, the Tribunal is not prepared in these circumstances to waive the requirement to serve and file pleadings and provide disclosure.
14There are a number of reasons why the Tribunal has reached this conclusion with respect to pleadings and disclosure. First, the referral of a complaint by the Commission to the Tribunal commences a statutory adjudication process which is governed by the Code, the SPPA and the rules of natural justice more generally. It is a de novo proceeding. Even if a respondent has chosen not to participate in the mediation, investigation and conciliation process at the Commission level, it is nonetheless entitled to receive notice of a referral under section 36(1) and participate in the adjudication process before the Tribunal. The pleadings which are required to be filed pursuant to the Tribunal’s Rules are one of the steps which begin that process and set out for the parties, if perhaps only in broad terms, the case that is required to be met. Also, it will be the first time a respondent knows in any formal way, the nature of the remedies which are being sought by the Commission and/or the complainant.
15Second, as noted in the Sanford decision (supra) section 6(4) of the SPPA provides that a Notice of Written Hearing must include a provision which indicates that the parties have the opportunity to make submissions as to why there “is good reason for not holding a written hearing.” In the Tribunal’s view, for that right to be meaningful, in most circumstances a party should have the opportunity to review the other parties pleadings, including any remedial request, and have an opportunity to review disclosure, before making submissions contemplated under section 6(4).
16Third, a review of pleadings which have been provided under the Rules also enables the Tribunal to consider any issue which may arise in advance of the hearing, including determining whether it is appropriate to hold a written or electronic hearing pursuant to section 6 of the SPPA and Rule 6 of the Tribunal’s Rules.
17Finally, it may be that the respondents in this case have chosen not to participate in the process. However, at this point they have not so indicated to the Tribunal, nor are they in default of any Tribunal Rule. Neither the Notice of Referral under section 36(1) of the Code, nor the Notice of the Initial Conference Call, included a caution to the respondents that their failure to participate, respond, or do any other thing would result in the Tribunal proceeding without their participation and without further notice to them (See: Section 7 of the SPPA).
18The Tribunal can understand the frustration of the Commission and the complainant in a circumstance where it appears that a respondent is evading or avoiding the legal processes established by statute for determining a complaint under the Human Rights Code. However, given the current statutory scheme, the Tribunal’s Rules and the form of notices that have been provided to the respondents thus far, it is not appropriate to waive the requirements for the filing of pleadings and providing disclosure.
Order
19In light of the above, the Tribunal makes the following Order:
a. The Commission shall serve and file its pleadings and provide disclosure, in accordance with the Rules no later than September 15, 2005. Should the complainant wish to file pleadings, she shall do so by that date, and shall also provide disclosure in accordance with the Rules no later than September 15, 2005.
b. The Tribunal will, subject to paragraphs c, d and e below, conduct a written hearing to determine the merits of the Complaint.
c. If the respondents object to proceeding by way of written hearing, they shall no later than September 26, 2005, file with the Tribunal and serve on the other parties, submissions as to why there is good reason not to conduct the proceedings by way of written hearing. The respondents should at the same time include submissions as to the appropriate procedures to be followed if, notwithstanding their objections, the Tribunal determines that it is appropriate to hold a written hearing. The respondents must also, at the same time, serve and file pleadings and provide disclosure in accordance with the Rules of the Tribunal
d. If the respondents file submissions as set out above, the Commission and the complainant shall have 5 days to file and serve their replies.
e. Should the respondents object to a written hearing on the merits, the Tribunal will issue a decision setting out whether the case will proceed by written or oral hearing.
f. Should the respondents fail to provide submissions by September 26, 2005 as set out in paragraph c above, in accordance with section 6(4)(c) of the SPPA, the Tribunal will proceed without the respondents’ participation and the respondents will not be entitled to any further notice of these proceedings.
g. Should the respondents fail to provide submissions as set out in paragraph c above, the Commission and the complainant shall, no later than October 14, 2005, serve and file all evidence, documents, submissions and argument upon which they seek the Tribunal to consider in making a decision on the merits of the complaint and with respect to appropriate remedy.
h. The parties should have reference to the Tribunal’s decision in Sanford (2005 HRTO 28) with respect to the nature and form of evidence that the Tribunal may consider in any written hearing which may be conducted in this case. The Registrar shall send all parties a copy of the Sanford decision along with this decision.
i. This Order shall serve as a Notice of Written Hearing.
20I am seized of this matter.
Dated at Toronto, this 12th day of August, 2005
“Signed by”
Michael Gottheil
Chair