HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Marina Pchelkina
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
Vladimir Tomsons
Respondent
INTERIM DECISION
Adjudicator: David A. Wright
Indexed as: Pchelkina v. Tomsons
Human Rights Tribunal of Ontario
400 University Avenue, 7^th^ 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@ontario.ca
Website www.hrto.ca
INTRODUCTION
1This Interim Decision deals with a request by the Ontario Human Rights Commission (the “Commission”) and the Complainant for a written hearing of this complaint, which alleges sexual harassment and discrimination in employment on the basis of sex.
2On the basis of the materials filed by the Commission, I am confident that the Respondent, Vladimir Tomsons, is aware of this proceeding and has chosen not to participate. Accordingly, the request is granted and this decision serves as a Notice of Written Hearing.
BACKGROUND
3The complaint was referred to the Tribunal by letter from the Commission on April 30, 2007. On May 7, 2007, the Tribunal sent the parties, by regular mail, a Notice of Initial Conference Call, indicating that an initial conference call was scheduled for May 29, 2007 at 8:30 AM, to be reached through a dial-in number. The Respondent did not attend on the call, on which I presided. On May 29, following the call, the Tribunal sent a letter to the parties setting out the deadlines for the filing of pleadings. The deadline for the Respondent’s response was July 24, 2007. The Respondent did not file a pleading or otherwise communicate with the Tribunal.
4The affidavit filed by the Commission in support of the request outlines in detail the Commission’s efforts to serve the Respondent both before and after referral of the complaint to the Tribunal. In summary, it outlines the following facts:
The complaint was sent to the Respondent by the Commission on January 20, 2005.
The Respondent provided a written response to the Commission on January 31, 2005.
During the Commission investigation process, between July 2006 and January 2007, the Respondent did not respond to various attempts to contact him, both at his home and place of business.
The Commission has confirmed the current address of the Respondent using information in the Respondent’s Driver Record and through an Equifax search.
On April 26, 2007 the Commission sent a letter to the Respondent at his home address advising him of the referral of the complaint to the Tribunal.
On July 23, 2007, the Commission served its Statement of Facts, Issues and Remedy upon the Respondent at his home address by courier.
On August 23, 2007 the Commission sent a letter to the Respondent by regular mail enclosing a copy of its disclosure package.
None of the correspondence has been returned to the Commission.
5The Commission also filed a Statement of Service, indicating that it served the request for a written hearing and accompanying affidavit upon the Respondent.
DECISION
6The Tribunal held in Sanford v. Koop, 2005 HRTO 28 at para. 21, that in most cases in which a respondent chooses not to participate, a written hearing will be appropriate if one is requested. In Lestage v. Rénozone Express Inc., 2006 HRTO 24 and Szabo v. Casa Industries et al., 2007 HRTO 21, the Tribunal held that it is necessary to ensure that effective notice of the proceeding and the request for a written hearing is given to any respondent prior to a notice of written hearing being issued.
7From the materials filed, the Tribunal is confident that the Respondent is aware of these proceedings and has chosen not to participate. He has been given effective notice of the proceeding and the request for a written hearing through the documents sent to him by courier and by regular mail. Accordingly, it is appropriate to hold a written hearing to determine whether Mr. Tomsons is liable for a violation of the Complainant’s rights under the Human Rights Code, R.S.O. 1990, c. H.19, as amended and the appropriate remedy if a violation is found.
ORDER
8The Tribunal therefore makes the following order:
a. The Tribunal will, subject to paragraphs b, c and d below, conduct a written hearing to determine the merits of the complaint.
b. If Mr. Tomsons objects to proceeding by way of written hearing, he shall, no later than October 9, 2007, 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. Mr. Tomsons should at the same time include submissions as to the appropriate procedures to be followed if, notwithstanding his objections, the Tribunal determines that it is appropriate to hold a written hearing.
c. If Mr. Tomsons files submissions as set out above, the Commission and the Complainant shall have five days to file and serve their replies.
d. Should the Respondent 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.
e. Should Mr. Tomsons fail to provide submissions as set out in paragraph b above or advise the Tribunal of his desire to make submissions and/or present evidence in the written hearing by October 9, 2007, the Tribunal will proceed without his participation and he will not be entitled to any further notice of these proceedings in accordance with section 6(4)(c) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended.
f. Should Mr. Tomsons fail to provide submissions as set out in paragraph c above, the Commission and the Complainant shall, no later than November 12, 2007, serve and file all evidence, documents, submissions and argument which they ask the Tribunal to consider in making a decision on the merits of the complaint and with respect to the appropriate remedy.
g. This Order shall serve as a Notice of Written Hearing.
Dated at Toronto, this 28th day of September, 2007.
David A. Wright
Vice-Chair