Taranco v. Michedes, 2008 HRTO 324

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Taranco Complainant

-and-

Ontario Human Rights Commission Commission

-and-

Peter Michedes a.k.a. Panayitis Michaelides Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price Date: November 27, 2008 Citation: 2008 HRTO 324 Indexed as: Taranco v. Michedes

1This is a Complaint which has been referred to the Tribunal by the Commission pursuant to section 36(1) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The April 17, 2007 Complaint alleges discrimination on the basis of age and sex in respect of accommodation.

2At the Pre-Hearing Conference Call held in this matter on October 27, 2008, the Commission indicated its desire to proceed by way of a written hearing in light of the fact that the respondent has not participated in the either the Commission or Tribunal process with respect to the Complaint.

3In accordance with its usual practice, by letter dated October 31, 2008, the Tribunal directed the Commission to file with the Tribunal and serve on the respondent written confirmation of its desire to have the matter proceed by way of written hearing and a supporting affidavit confirming that notice of the proceeding and notice of the request for a written hearing had been given to the respondent by the Commission.

4On November 7, 2008, the Commission filed with the Tribunal written confirmation of its desire to proceed by way of written hearing and an affidavit in support of that request. The supporting affidavit, however, sworn by an employee of the Commission, attested only to the fact that copies of the documents in question had been addressed to the respondent, and sent by regular mail to a specific street address. The affidavit does not attest in any way to the source of the Commission’s belief that the street address in question is a valid address for the respondent, although during the Pre-Hearing Conference Call the Commission suggested that the respondent himself had provided the Commission with the street address in question. These facts, however, were not attested to in the supporting affidavit.

5By letter dated November 18, 2008, the Tribunal wrote to the Commission and directed the Commission to provide further supporting affidavit evidence outlining its reasons for believing that mailing notice of the proceeding and notice of the request for a written hearing to the address in question had the effect of giving notice to the respondent of the proceeding and of the request for a written hearing. The Tribunal’s letter also drew the Commission’s attention to the Tribunal’s decision in Turner v. 507638 Ontario Ltd., 2008 HRTO 51, which set out requirements for notice.

6By email dated November 18, 2008, the Commission responded that it could not provide an affidavit attesting to the fact that mailing documents to the street address in question had the effect of providing notice to the respondent. Further, the Commission has not provided any other affidavit evidence sufficient to satisfy the Tribunal that the respondent has received notice of these proceedings and of the Commission’s request to proceed by way of written hearing.

DECISION

7The 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. However, as the Tribunal held in Lestage v. Rénozone Express Inc., 2006 HRTO 28, 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.

8Rule 28 of the Tribunal’s Rules of Practice 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.

9The Tribunal notes that it is an adjudicative body independent from the Commission and 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 respondent has received proper notice of the proceeding in accordance with its rules.

10In previous cases brought before the Tribunal by the Commission, the Commission has satisfied its obligation in this regard by providing affidavits attesting that documents were delivered to the street address listed for the respondent on his driver’s licence report and/or Equifax searches (Domingues v Fortino, 2007 HRTO 7; Turner v 507638 Ontario Limited, 2008 HRTO 51; Pchelkina v Tomsons 2007 HRTO 32); that the respondent’s signature had been obtained on a courier slip acknowledging receipt of the relevant documents at the address in question (Domingues, supra); and by personal service through a process server (Domingues, supra). There may be other ways by which notice to the respondent may be proved. It is the fact that effective notice of the proceedings has been given to the respondent which is of primary importance to the Tribunal, and not the method by which it has been achieved.

11In this case, the supporting affidavit filed by the Commission attested only that notice of the proceeding and of the request for a written hearing were mailed to a certain mailing address. It did not connect in any way the mailing address to the respondent in this case.

12Accordingly, I am not satisfied, based on the evidence provided thus far, that the respondent has received effective notice of the proceedings or of the request for a written hearing. I am therefore not prepared to grant, at this point, the Commission’s request to proceed by way of written hearing in this matter.

13In order for this matter to proceed, it is essential that the respondent be provided with notice of the proceedings. Since the Commission wishes to proceed by way of written hearing, it is also essential that the respondent be provided with notice of the request for a written hearing. Accordingly, and to that end, I make the following direction:

1. Within 21 days of the date of this decision, the Commission shall file additional affidavit evidence demonstrating that its efforts to date have had the effect of giving the respondent notice of the proceedings and of the Commission’s request for a written hearing, and setting out all of the particulars of such service and any accompanying documentation (dates of service, how address was obtained, efforts to verify validity of address, courier slips, etc.); or, if necessary to ensure that proper notice has been given, the Commission shall serve the respondent with notice of the proceedings and the request for a written hearing, using any of the methods of service available to it, and provide the Tribunal with additional affidavit evidence outlining such further efforts and establishing that the respondent has been given notice of the proceedings and of the request for a written hearing, and setting out all of the particulars of such service and accompanying documentation, as outlined above.

14The Tribunal will consider the Commission’s request for a written hearing once the foregoing is received.