Ontario Human Rights Commission v. Fortino, 2006 HRTO 34

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Natercia Domingues

Complainant

-and-

Frank Fortino and Graziella Varbaro

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: December 5, 2006

Citation: 2006 HRTO 34

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”), by Ms. Natercia Domingues (“the Complainant”) alleging that the Respondents, Frank Fortino and Graziella Varbaro, infringed sections 5(1), 7(2), 7(3)(a) and 9 of the Code.

2By letter dated August 8, 2006, the Commission requested that the Complaint be disposed of by way of written hearing. Following its receipt of this request, the Tribunal directed that the Commission provide the Tribunal with an affidavit detailing, among other things, the steps taken by the Commission to serve the Respondents in this matter. On November 7, 2006, the Commission filed an affidavit with the Tribunal.

3The Tribunal has reviewed the affidavit filed by the Commission and finds it appropriate to seek further clarification from the Commission that the Respondents have been provided with proper notice of these proceedings prior to considering the request for a written hearing.

FACTS

4The complaint against the Respondents was referred to the Tribunal on April 25, 2006.

5The Complainant had initially filed her complaint against the Respondents, as well as a corporate Respondent, Bocci Shoes Inc. However, the Commission decided not to refer the subject matter of the complaint against the corporate Respondent to the Tribunal on the basis, inter alia, that the corporate Respondent was no longer in business and was bankrupt.

6On May 4, 2006, the Tribunal sent notice of the Initial Conference Call (“ICC”) to Julie O’Donnell, who was identified as counsel to the Respondents in the Commission’s correspondence to the Tribunal. On May 8, 2006, Ms. O’Donnell wrote to the Tribunal advising that she no longer acted for the Respondents and had no way to contact them. In her letter, Ms. O’Donnell enclosed copies of her earlier correspondence to the Commission on April 28, 2006, January 23, 2006, and May 24, 2005 confirming she no longer acted for the Respondents.

7On May 9, 2006, the Commission provided the Tribunal with the following new addresses for the Respondents:

Frank Fortino 98 Hallsport Crescent North York, ON M3M 2K6

Graziella Varbaro 1 Wilmont Drive Downsview, ON M3N 1N5

8On the same date, the Tribunal re-sent the Notice of ICC to the Respondents at the addresses provided by the Commission.

9The Respondents did not participate in the ICC nor did they contact the Registrar in advance of the ICC to advise of their unavailability.

10The Tribunal proceeded with the ICC in the absence of the Respondents. Dates were fixed for the exchange of pleadings and by letter, dated June 5, 2006, the Tribunal confirmed that the Commission and the Complainant were to file their respective pleadings and disclosure by June 30, 2006, the Respondents by July 17, 2006, and any replies by July 24, 2006. The Tribunal sent this letter by courier to the Respondents at the addresses referred above in paragraph 7. The instructions to the courier are to obtain a signature at the addresses served. The packages were signed for at each of the addresses served.

11On June 29, 2006, the Commission wrote to the Tribunal enclosing its Statement of Facts, Issues and Remedy. In its letter, the Commission indicated that it had provided the Commission’s Statement of Facts, Issues and Remedy and its disclosure package to the Respondents by both regular mail and courier. The Commission clarified the spelling of Ms. Varbaro’s name and stated that the addresses for service were as follows:

Graziella Varbaro 1 Wilmont Drive Downsview, Ontario M3N 1N5

Frank Fortino 98 Hallsport Crescent Downsview, Ontario M3M 2K6

12In its letter, the Commission outlined its efforts to locate the Respondents. It advised that Ms. Varbaro’s address as noted above appeared on her signed witness statement and was consistent with a “recent” Equifax search of her name and with the address for Graziella Varbaro, who was listed as a Director in the Corporation Profile Report of the now bankrupt Bocci Shoes Inc. in the Ministry of Consumer and Business Services database. In addition, the Commission advised that Mr. Fortino’s address was consistent with the results of a Driver’s Licence search in the Ministry of Transportation’s database, an Equifax search and with the address for Frank Fortino who was listed as a Director in the Corporation Profile Report of the now bankrupt Bocci Shoes Inc.

13The Commission also stated that at one point in the investigation it had been contacted by Fernando Mastropietro of Mastrop Paralegal Services who had advised that he was contacting the Commission on behalf of Mr. Fortino. Although Mr. Mastropietro only provided the Commission with his fax number and not his address or confirmation of his retainer, the Commission stated that out of an abundance of caution, it had forwarded a copy of the Commission’s Statement of Facts, Issues and Remedy by facsimile to Mr. Mastropietro so that he could contact the Commission if he was retained and would like a copy of the disclosure materials.

14On August 8, 2006, the Commission with the consent of the Complainant, wrote to the Tribunal requesting that a written hearing be held in this matter. That letter stated in part:

While at one point all the respondents were represented by counsel, Julie A. O’Donnell, who provided a Response to the complaint on their collective behalf, she has since confirmed that she is no longer retained.

The respondent Frank Fortino has not replied to any communications related to this matter since the joint Response was filed, and was not present at the pre-hearing conference call held on May 26, 2006. While the Commission was contacted by Fernando Mastropietro of Mastrop Paralegal Services on behalf of Mr. Fortino at one point in the investigation, Mr Mastropietro did not provide the Commission with his address and did not confirm his retainer. Neither Mr. Mastropietro nor Mr. Fortino have responded to the Commission’s Statement of Facts, Issues and Remedy.

The respondent Graziella Varbaro took part in the initial investigative stages and provided a witness statement on September 16, 2005. However, she, too has failed to respond to the Commission’s communications related to this matter since that time, was not present at the pre-hearing conference call, and has failed to submit a Response to the Commission’s Statement of Facts, Issue and Remedy.

From the above, it is clear that the Mr. Fortino and Ms. Varbaro are aware of the complaint against them. Indeed, as noted above, counsel at one point was retained to file a response for all the respondents. The Commission has taken various steps to confirm the addresses of both respondents as outlined in its letter to the Tribunal Registrar dated June 29, 2006, which accompanied its Statement of Facts, Issues and Remedy.

We submit that, in the circumstances of this case, a written hearing would be the most expedient and cost-efficient manner in which to proceed while still preserving the fairness of the process to all concerned….

15The Commission’s correspondence of August 8, 2006 was sent to the Respondents by regular mail.

16On October 19, 2006, the Tribunal directed the Commission to:

(1) Re-serve the letter to the Registrar from the Commission dated August 8, 2006, requesting a written hearing by way of courier to the Personal Respondents so as to permit tracking of the letter and to provide the Tribunal with confirmation of the same.

(2) Provide the Tribunal with an affidavit detailing the steps taken to serve the Respondents in this matter, including evidence of the addresses served; the reasons(s) for serving at those addresses; and tracking of the delivery of documents served.

17On November 7, 2006, the Commission filed the affidavit of Rebecca Hines, a paralegal with the Legal Services Branch of the Ontario Human Rights Commission, with the Tribunal. The relevant part of the affidavit provides as follows:

2. The Commission believes that both respondents, Graziella Varbaro and Frank Fortino, are aware of the complaint as counsel Julie A. O’Donnell filed a response to the complaint on their behalf. Ms. O’Donnell later confirmed that she was no longer retained by the respondents.

3. To confirm the address for Ms. Varbaro, the Commission compared the address listed on her signed witness statement with the address listed in the corporate profile report and Equifax search. The address listed in all three documents was: 1 Wilmont Drive, Downsview ON, M3N 1N5.

4. To confirm the address for Mr. Fortino, the Commission compared the address listed in the corporate profile report with the driver’s licence report and Equifax search. The address listed in all three documents was 98 Hallsport Crescent, Downsview Ontario M3M 2K6.

5. On Friday, October 20, 2006, the Commission served both parties with our letter dated June 29, 2006 attaching the Commission’s pleadings, our letter dated August 8, 2006 and a complete copy of the Commission’s disclosure. This package was sent to both respondents to the addresses listed above by both courier and Xpresspost. Both courier packages have been returned to our office. To date, the Xpresspost packages have not been returned.

6. Despite the steps taken as set out in paragraphs 3, 4 & 5, the Respondents have not indicated to the Commission that they intend to participate in the Tribunal’s proceedings….

The Respondents have not filed pleadings or provided any disclosure in accordance with the time fixed by the Tribunal. In addition, the Respondents have not communicated in any way with the Tribunal at any time during this proceeding.

DECISION

18Rule 20 of the Tribunal’s rules permits documents to be served on a person in various ways including by courier to the person’s last known address. In addition, Rule 24 provides that the Tribunal may direct the Commission or other party to take steps to confirm that service has effectively been made on a person.

19In the circumstances of this case, the Commission is requesting a written hearing. Prior to considering this request, the Tribunal seeks further clarification that proper notice has been given to the Respondents in accordance with its rules.

20In response to the Tribunal’s direction on October 19, 2006, the Commission has filed an affidavit describing in general terms the steps taken to serve the Respondents in this matter. However, the affidavit does not contain details such as dates (e.g. the date(s) that the Respondents were aware of the complaint; the date(s) of information considered to confirm addresses); particulars of the Commission’s service of documents on the Respondents at each stage in the proceeding; and particulars of the instructions given to the courier and Xpresspost in the service of documents on October 20, 2006. In addition, the affidavit does not contain any supporting documentation which is referred to in the affidavit including the documentation considered by the Commission to confirm the addresses of the Respondents.

21In highlighting these omissions, the Tribunal is not suggesting that the Commission has not properly served the Respondents. However, the Tribunal is indicating that there is insufficient detail in the affidavit submitted and other material on record with the Tribunal for it to confirm that the Respondents have received proper notice of the proceeding by service at their last known addresses.

22The Tribunal notes that it is an adjudicative body independent from the Commission. As a result, the Tribunal cannot make assumptions in interpreting the material submitted by the Commission. Rather, in order to ensure the integrity of its legal processes, the Tribunal must ensure there is clear evidence on the face of the record indicating that the Respondents have received proper notice of the proceeding in accordance with its rules.

23Accordingly, the Tribunal directs the Commission to provide to the Tribunal within ten days of this decision, a further affidavit detailing the steps taken to serve the Respondents in this matter, including evidence of the addresses served; the reason(s) for serving at those addresses; and the tracking of the delivery of documents served. For greater clarity, the affidavit should include applicable dates of the evidence provided in the affidavit; full details of the service of documents including the tracking of documents served on the Respondents by the Commission throughout this proceeding; and copies of any supporting documentation referred to in the affidavit.

24The Tribunal will consider the Commission’s request for a written hearing once the foregoing is received.