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
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@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 Frank Fortino and Graziella Varbaro (“the Respondents”), infringed sections 5(1), 7(2), 7(3)(a) and 9 of the Code.
2The Respondents have not been participating in the proceeding before the Tribunal. As a result, the Commission, with the consent of the Complainant, requested a written hearing.
3On December 5, 2006, the Tribunal issued an interim decision seeking further clarification from the Commission that the Respondents have been provided with proper notice of these proceedings. The Tribunal directed the Commission as follows:
…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 in the affidavit.
4The Tribunal noted that it would consider the Commission’s request for a written hearing once the foregoing was received.
5On December 15, 2006, the Commission filed two affidavits with the Tribunal: the affidavit of Rebecca Hines, sworn December 14, 2006 and the affidavit of Gary Switzer, sworn, December 14, 2006. The affidavit of Ms. Hines details the steps taken to serve the Respondents in this matter as outlined in the direction referred to in paragraph 3 above. The affidavit of Mr. Switzer states that he personally served the Respondents with a number of documents from the proceeding including the Commission’s pleadings, disclosure and correspondence requesting a written hearing on December 12, 2006.
6This decision will now address the Commission’s request for a written hearing.
FACTS
7The complaint was referred to the Tribunal on April 25, 2006.
8The history of this matter is summarized in the Tribunal’s interim decision of December 5, 2006 and will only be repeated, in part, below.
9Initially, the Complainant had filed her complaint against a corporate respondent as well as the Respondents identified above. 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.
10On 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. However, 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.
11On 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
12On the same date, the Tribunal re-sent the Notice of ICC to the Respondents at the addresses provided by the Commission by regular mail. That notice indicated in part:
NOTICE OF INITIAL CONFERENCE CALL
The Ontario Human Rights Commission has referred the Complaint of Natercia Domingues dated July 31, 2002, 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 April 26, 2006.
The proceeding before the Tribunal will commence by Initial Conference Call on:
Date: May 26, 2006 Time: 3 p.m.
Important - If You Do NOT Participate in the Initial Conference Call
It is very important for you to participate in this call. If you are not available for the conference call, either personally or through your legal counsel or another 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, 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 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 or toll-free at 1-800-668-3946.
13The Respondents did not participate in the ICC nor did they contact the Registrar in advance of the ICC to advise of their unavailability.
14The Tribunal proceeded with the ICC and dates were fixed for the exchange of pleadings. On June 5, 2006, the Tribunal sent a letter confirming matters determined at the ICC. The letter indicated 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.
15The Tribunal sent the letter confirming the ICC by courier to the Respondents at the addresses referred to in paragraph 11 with instructions that the courier obtain a signature at the addresses served. The packages were signed for at each of the addresses served.
16The Commission filed its pleadings and disclosure in accordance with the schedule determined at the ICC. However, the Respondents did not file pleadings or disclosure.
17On August 8, 2006, the Commission with the consent of the Complainant requested that the complaint proceed by way of written hearing. This request was copied by regular mail to the Respondents.
18Initially, in a direction on October 19, 2006, the Tribunal directed that the Commission re-serve its letter to Registrar requesting a written hearing by way of courier to the Respondents and provide an affidavit to the Tribunal detailing the steps taken to serve the Respondents in this matter. Thereafter, in its Interim Decision on December 5, 2006, the Tribunal sought further clarification from the Commission that the Respondents had received proper notice of the proceeding as set out in paragraph 3 above.
19A copy of the Tribunal’s decision was couriered to both Respondents at the addresses referred to above, but was returned to the Tribunal in each instance.
20On December 15, 2006, the Commission filed two affidavits in response to the Tribunal’s interim decision.
21The affidavit of Rebecca Hines, sworn December 14, 2006, sets out the various steps taken to locate and serve the Respondents in this proceeding. The affidavit indicates that the Respondents had participated in the Commission’s investigation process. In the period August 21, 2002 to May 23, 2005, both Respondents were represented by Julie O’Donnell and a response to the complaint was filed on their behalf. In addition, on September 16, 2005, the Respondent Varbaro attended at the Commission office and signed a witness statement.
22The affidavit of Rebecca Hines also reflects that at the time the complaint was referred to the Tribunal, the addresses provided to the Tribunal were the last known addresses of the Respondents. The addresses referred to in paragraph 11 above were confirmed by the Commission through a Corporation Profile Report of the Corporate Respondent in the investigation stage. The Corporation Profile Report produced June 3, 2005, listed the addresses of both Respondents, since the Respondent Fortino was identified as a director and president and the Respondent Varbaro was identified as a director.
23In the course of the proceeding before the Tribunal, the Commission took further steps to locate and communicate with the Respondents. The address for the Respondent Fortino referred to above was confirmed from an Equifax search on May 9, 2006 and a driver’s licence search through the Ministry of Transportation on May 19, 2006 (with the exception that the municipal address was listed as Downsview). On June 29, 2006, the Commission served by mail and courier its pleadings and disclosure on the Respondent Fortino at the address identified. The courier package was successfully delivered. More recently, on December 11, 2006, the Commission requested an updated Equifax search and a driver’s licence search. While the address on the driver’s licence search was consistent with the May 19, 2006 search, the former revealed the following new address:
150 Strathnairn Avenue North York, ON M3M 2G1
24On December 12, 2006, the Respondent Fortino was served personally at the new address with various documents including the Commission’s pleadings, disclosure, letter requesting a written hearing, dated August 8, 2006, and the Tribunal’s letter dated October 19, 2006.
25The affidavit recounts similar steps regarding the Respondent Varbaro. The address for Varbaro was confirmed from an Equifax search on June 13, 2006, and more recently, on December 11, 2006 (although the latter search identified the municipality as North York). The service of the Commission’s pleadings and disclosure on June 29, 2006 was returned to the Commission as not able to be delivered. However, on December 12, 2006, the Respondent Varbaro was served personally at the address listed in paragraph 11 with the same material served on the Respondent Fortino on that date.
26A separate affidavit of Gary Switzer, a process server with York Regional Document Services Inc., sworn December 14, 2006, was also filed with the Tribunal. This affidavit indicates that Mr. Switzer personally served the Respondents on December 12, 2006 with the documents described in paragraph 24 above.
27On February 7, 2007, the Commission confirmed that the postal code listed on Canada Post’s website for the Respondent Fortino was different from the postal code listed in the Equifax Search referred to in paragraph 23 above. The Commission has confirmed that the correct address for service is as follows:
Frank Fortino 150 Strathnairn Avenue North York, ON M6M 2G1
28It is noted that the municipal addresses for both Respondents are referred to as Downsview, North York or in some instances, Toronto in the various searches. The Tribunal does not view these differences as meaningful given that the street details and postal codes were consistent throughout.
29The Respondents have not communicated in any way with the Tribunal throughout this proceeding.
DECISION
30Having regard to facts and circumstances of the present case and the Commission’s request of August 8, 2006, the Tribunal finds it appropriate to issue a Notice of Written Hearing.
31Section 5.1 of the Statutory Powers Procedure Act R.S.O. 1990, c.S.22 (the “SPPA”) permits a tribunal to hold a written hearing, where the tribunal’s rules deal with written hearings. In particular, Section 5.1 provides in part:
Written Hearings
5.1(1) A tribunal whose rules made under section 25.1 deal with written hearings may hold a written hearing in a proceeding.
Exception
(2) The tribunal shall not hold a written hearing if a party satisfies the tribunal that there is good reason for not doing so.
Same
(2.1) Subsection (2) does not apply if the only purpose of the hearing is to deal with procedural matters.
32Rule 6 of the Tribunal’s Rules of Practice July 2004 (the “Rules”) deal with written hearings as follows:
- Any part of a proceeding may be conducted in person, by way of written hearing, or electronically by video or telephone conference at the discretion of the panel in accordance with the Statutory Powers Procedure Act
33In Sanford v. Koop, 2005 HRTO 28, the Tribunal held that it had the authority to hold a written hearing in appropriate circumstances. While not purporting to enumerate all cases where a written hearing would be appropriate, the Tribunal specifically found that where a respondent chooses not to participate in the Tribunal’s legal processes and the Commission or Complainant requests a written hearing, it would be rare for the Tribunal to schedule an oral hearing (Sanford, supra, at para. 19 and 21).
34In Sanford, supra, the Tribunal also discussed the nature of evidence that would normally be required at a written hearing. The Tribunal stated at paragraph 30 and 31 of that decision:
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.
The Tribunal notes that it is always be open to parties to make submissions as to the appropriate form of evidence in a written hearing in a particular case. The comments above set out what the Tribunal considers appropriate in the normal course, and in circumstances where a respondent chooses not to participate in a hearing.
35In the present case, the Respondents have received proper notice of the Tribunal’s proceedings in accordance with its Rules and have failed to participate in the proceedings. Having regard to the foregoing and the Commission’s request, with the consent of the Complainant for a written hearing, the Tribunal is satisfied that it is appropriate to issue a notice of written hearing.
ORDER
36In light of the above, the Tribunal 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 the Respondents object to proceeding by way of written hearing, they shall no later than February 26, 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. In addition, 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 Tribunal’s Rules.
c. If the Respondents file submissions set out in paragraph b. the Commission and the Complainant shall have until March 5, 2007 to file and serve any reply to the submissions.
d. Should the Respondents object to a written hearing on the merits, the Tribunal will issue a decision setting out whether the complaint will proceed by written or oral hearing.
e. Should the Respondents fail to provide submissions as set out in paragraph b. above, the Commission and the Complainant shall, no later than March 5, 2007, serve and file all evidence, documents, submissions and argument that they wish the Tribunal to consider in making a decision on the merits of the complaint and any remedy requested. In providing their evidence, the Commission and Complainant should have regard to paragraph 34 above.
f. Should the Respondents fail to provide submissions as set out in paragraph b. above, or participate in the hearing in accordance with this notice, the Tribunal may proceed without the Respondents’ participation and the Respondents will not be entitled to any further notice in the proceeding.
g. This Order shall serve as Notice of Written Hearing.
37Having regard to the information provided in the affidavits filed on December 15, 2006, and subsequently clarified on February 7 and February 9, 2007, the Tribunal directs that the Registrar send another copy of its Interim Decision dated December 5, 2006, and in addition, send a copy of this decision and future correspondence in this matter to the Respondent Fortino at the address listed below:
Frank Fortino 150 Strathnairn Avenue North York, ON M6M 2G1
Dated at Toronto, this 13th day of February, 2007.
“Signed By”
Kathleen Martin
Member