Arsenault v. ABC Consolidators International, 2008 HRTO 227

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anna-Maria Arsenault

Applicant

-and-

ABC Consolidators International Inc., Ian Kennedy, Rick Langdon, Ron Landers and Jackie Newton

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: November 4, 2008

Citation: 2008 HRTO 227

Indexed as: Arsenault v. ABC Consolidators International

Human Rights Tribunal of Ontario 655 Bay Street, 14th Floor Toronto, ON M7A 2A3 Phone (416) 314-8419 / Fax (416) 314-8743 / Toll free 1-866-598-0322 TTY (416) 314-2379 / (toll free) 1-800-424-1168 E-mail hrto.registrar-transition@ontario.ca Website www.hrto.ca

1This is an Application filed September 15, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). On October 9, 2008 the Tribunal scheduled a mediation for December 10, 2008. The respondents have not yet filed their Response which is due 35 days after receipt of the Application.

2On October 31, 2008 the respondents wrote the Tribunal refusing to participate in the mediation on the basis that the parties have already attended an unsuccessful mediation.

3The Tribunal’s Rules of Procedure for applications under Section 53(3) of the Human Rights Code (Section 53(3) Rules) and Guide to Section 53(3) applications, contemplate that the first step in a section 53(3) application is mediation. If mediation is unsuccessful, the mediator will assist the parties to complete a case management checklist (Rule 8) and the application proceeds to a case resolution conference in accordance with Rule 9.1.

4Where a party refuses to attend the mediation, it may impede the efficient processing of the application, in which case the Tribunal may, in its discretion, issue a case management direction (Rule 5.14) directing the parties to attend at the Tribunal to complete the matters identified in the case management checklist. In this case, however, I am satisfied the Application can be processed expeditiously without requiring such attendance. In the circumstances of this case, and having regard to the Tribunal’s Rules, the mediation scheduled for December 10, 2008 has been cancelled. The Tribunal will proceed to the next step in the process, which is to prepare for a case resolution conference in accordance with Rule 9.

5As indicated above, the respondents have yet to file a Response although the time limits for doing so have expired. An application to the Tribunal is a legal proceeding, which, if a violation of the Code is found, may lead to various orders, including monetary compensation, other forms of restitution to the applicant, and orders to take action to promote compliance with the Code. Failure to file a response or participate in a Tribunal proceeding may lead to orders against respondents without their participation. The parties’ attention is drawn to Rule 3.2 of the Tribunal’s Rules which reads as follows:

3.2 Where an Application (Form A) is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application, including the allegations set out in the complaint;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal.

6Accordingly, the parties are directed as follows:

a. If the respondents wish to participate further in this proceeding a Response (Form B) shall be filed within 10 days of receipt of this decision. If no Response is filed the Tribunal may proceed without further notice to the respondents, and may take any or all of the other steps set out in Rule 3.2.

b. Within 30 days following the date of this decision, the applicant shall deliver to the respondents and file with the Tribunal, a statement of any additional facts the applicant intends to rely upon and a description of the remedies sought. In addition, the applicant shall deliver to the respondents a copy of all arguably relevant documents in the applicant’s possession, except where privilege is claimed.

c. Within 45 days following the date of this decision, the respondents shall deliver to each other and to the applicant and file with the Tribunal a statement of any additional facts the respondents will rely upon and the respondents’ position with respect to the requested remedies. In addition, the respondents must deliver to each other and to the applicant a copy of all arguably relevant documents in the respondents’ possession, except where privilege is claimed.

7Within 10 days of receipt of this decision the parties are directed to provide the Registrar-Transition with their available dates between February 1 and mid-March 2009 for a two day case resolution conference.