Ontario Human Rights Commission v. 1233065 Ontario Inc., 2005 HRTO 33

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Daiming Huang

Complainant

-and-

1233065 Ontario Inc. (Ottawa Senior Chinese Cultural Association)

o/a Ottawa Chinese Senior Association, Feng Xu and Shen Guo

Respondents

INTERIM DECISION

Adjudicator: Mary Ross Hendriks

Date: August 30, 2005

Citation: 2005 HRTO 33

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 request made by the Commission to the Tribunal, in a letter dated August 23, 2005, that the Tribunal henceforth proceed by way of written hearing to determine the merits of this Complaint, subject to objections raised by the Respondents.

2In this letter, the Commission asks that the Tribunal exercise its discretion under Rule 6 of the Tribunal’s Rules of Practice, July 2004, and section 5.1(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22 (SPPA) to conduct the proceeding by way of a written hearing, in light of the lack of participation by the Respondents.

FACTS

3The Complainant in this matter alleges that her right to equal treatment with respect to services, good and facilities without discrimination because of creed was violated by the Respondents, contrary to sections 1 and 9 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended. Her Amended Complaint, dated August 24, 2004, was referred to the Tribunal on December 7, 2004.

4The Tribunal sent out its Notice of Initial Conference Call, on December 13, 2004, and received a reply in Mandarin from the Respondents, dated December 20, 2004, asking for the Tribunal to contact their representative, Mr. Chow, in Mandarin, for that call. The Tribunal arranged for a Mandarin-English Certified Interpreter to take this call with the Tribunal, on January 5, 2005.

5During the Initial Conference Call, no one participated on behalf of the Corporate Respondent nor on behalf of Ms Xu. Mr. Chow was to have participated as the Corporate Respondent’s representative, but when the Tribunal’s operator contacted that number, someone hung up on her. Mr. Guo did participate, after the Tribunal directed the Conference Call operator to look him up since the number available was “not in service,” the operator indicating to the Tribunal that the “service was disconnected as per the customer’s request.” At that time, the Tribunal explained its process to Mr. Guo with the assistance of the interpreter, and he requested mediation. In order to assist Mr. Guo, the Tribunal made three different mediation dates available, so that he would have an opportunity to speak with the other Respondents who were not on this conference call, which he agreed to do. The Tribunal’s confirming letter of January 6, 2005 required all parties to advise the Tribunal’s Hearings Officer of their availability for mediation no later than January 12, 2005.

6The Respondents failed to reply to this letter, and efforts by the Tribunal’s staff to reach the Respondents were unsuccessful. The Commission asked the Tribunal in its letter of March 2, 2005, to convene a conference call to set the dates for the exchange of pleadings, since the Respondents were not participating in the process. All parties were notified in a further letter from the Registrar of the Tribunal of March 23, 2005, that a Pre-Hearing Conference Call would be held by mid-April. The Tribunal wrote to all parties and offered them the adjudicator’s available dates for a Pre-Hearing Conference Call on April 6, 2005. The Tribunal wrote to all parties again on April 15, 2005 and advised them that the Pre-Hearing Conference Call would be held on April 22, 2005 at 10 a.m., and that a translator had been retained for their assistance. All correspondence from the Tribunal to all the parties has been to their last known addresses. All correspondence sent to the Corporate Respondent’s address has been returned to the Tribunal with a notation, “return to sender.”

7The Pre-Hearing Conference Call took place on April 22, 2005, in the Respondents’ absence. At that time, the Tribunal set deadlines for the exchange of pleadings and disclosure, and set dates for the hearing on the merits, in Ottawa, in late October and early November, 2005.

8At the Tribunal’s request, the Commission conducted some corporate, internet (Canada 411), and Equifax searches, and wrote to the Tribunal on April 29, 2005, setting out the results of same. The Commission also advised the Tribunal of its success in serving the Corporate Respondent with its disclosure in care of its current President, Wan Fan Zhou, at the last known address of the Corporate Respondent, which is the same address used by the Tribunal for service. The Commission has also satisfied the Tribunal that the last known addresses for the Personal Respondents are correct, and that they have chosen not to accept service of various documents.

9On June 6, 2005, the Commission served and filed its Statement of Facts and Issues in accordance with Rule 37 of the Rules of Practice, supra. The Respondents have failed to reply to this pleading and have not contacted the Tribunal. Pleadings are now closed.

10The Commission wrote to the Tribunal on August 23, 2005, and asked that the hearing be conducted in writing, stating:

Aside from providing a response to the complaint, the respondents did not participate in the Commission’s investigation. Aside from participating during the initial conference call, the respondents have not contacted the parties or the Tribunal and have not filed pleadings.

In our view, a written hearing would be fast and cost-efficient for all concerned.

DECISION

11After weighing the interests of natural justice and fairness with the goal of procedural and economic efficiency, the Tribunal grants the request of the Commission to hold the hearing on the merits in writing, see: Sanford v. Koop, 2005 HRTO 28 and Boodhram v. 2009158 Ontario Limited et al., 2005 HRTO 29. It hereby adjourns the dates set for the oral hearing on the merits, and issues a Notice of Written Hearing in accordance with section 6(4) of the SPPA, on terms, as per the Order below. The Notice of Written Hearing includes a provision indicating that the parties have an opportunity to make submissions as to why there “is good reason for not holding a written hearing.” If the Respondents object, they must serve on the other parties and file with the Tribunal their submissions, no later than September 30, 2005, in accordance with the terms of the Order, and the Tribunal will issue a subsequent decision responding to same. Should the Respondents fail to contact the Tribunal by September 30, 2005, the Tribunal will proceed with a written hearing and will proceed without any further notice to the Respondents, as per section 6(4)(c) of the SPPA.

ANALYSIS

12The Tribunal is cognizant of the need to prove the case before it, even in circumstances where the Respondents may be absent. Thus, it adopts the reasoning contained in paragraph 30 of Sanford, supra, in which Chair Gottheil states:

Again, case law suggests that mere pleadings will not be sufficient to establish an evidentiary basis for findings of fact and remedial orders, where a hearing is required to be held. (Re City of Windsor, supra). The Tribunal finds however that affidavits or statutory declarations by persons who would otherwise have provided viva voce evidence had the hearing been held as an oral hearing would be a proper form of evidence. These could contain statements based on personal knowledge, or information and belief (as long as the basis for the information and belief was set out in the affidavit). Also, business records and medical reports which would normally be admissible before the Tribunal without the necessity of calling the maker of the document, would generally be admitted. The Tribunal would retain the power to question an affiant, or rule or place conditions upon the admissibility of a document.

13In this case, the issue before the Tribunal is creed, as the Complainant practices Falun Gong (Falun Dafa), and alleges that the Respondents rejected her membership in their organization for this reason, and made some derogatory remarks about Falun Gong to her and to her son. It would be helpful for the Tribunal to receive expert evidence by way of affidavit with respect to the practice of Falun Gong, in addition to any affidavit evidence provided with respect to the allegations made.

ORDER

14The Tribunal hereby orders:

(1) The dates set during the Pre-Hearing Conference Call for the oral hearing to be held in Ottawa are hereby adjourned;

(2) The request to hold a written hearing is granted, subject to the terms set out below;

(3) If the Respondents object to proceeding by way of written hearing, they shall no later than September 30, 2005, serve and file submissions as to why there is good reason not to conduct the proceedings in this manner;

(4) If the Respondents file such submissions, the Commission and Complainant shall have five days to reply;

(5) At that juncture, the Tribunal would issue a further interim decision setting out whether the case will proceed by way of written or oral hearing;

(6) If the Respondents do not provide written submissions by September 30, 2005, then 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;

(7) If the Respondents fail to provide such submissions, then the Commission and Complainant shall serve and file all their written materials on which they rely, by November 1, 2005 and ask the Tribunal to consider them as the record to be used to render its decision on the merits of the Complaint and should include the remedy being sought; and

(8) This Order shall serve as a Notice of Written Hearing.