Guild v. Kyle-Jansen, 2008 HRTO 347

Human Rights Tribunal of Ontario

B E T W E E N:

Robert Guild Applicant

-and-

Linda Kyle-Jansen Respondent

INTERIM DECISION

Adjudicator: Michael Gottheil Date: December 9, 2008 Citation: 2008 HRTO 347 Indexed as: Guild v. Kyle-Jansen

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code") on July 29, 2008. The Application was sent by the Tribunal to the respondent on September 9, 2008 along with a formal Notice of Application. As no Response was received within 35 days from the date of the Notice of Application, on October, 23, 2008 the Tribunal issued a "no response" decision (See: 2008 HRTO 184). To date, the respondent has not filed a Response, nor has the respondent contacted the Tribunal. This decision provides further case management directions.

2The Notice of Application was sent to the respondent by regular mail at the address provided in the Application. It was not returned as undeliverable. The Tribunal's October 23, 2008 decision was sent to the respondent by courier and e-mail. Neither the courier package nor the email were successfully delivered.

3The Tribunal must take a balanced approach in situations where a respondent has not filed a Response and there is no certainty that the respondent has received actual notice of an Application. Natural justice and fairness requires that an individual or organization named as a respondent be given notice of the proceeding and an opportunity to participate in accordance with the Tribunal's Rules. On the other hand, there may be circumstances where a respondent purposely evades receipt of an Application or a Tribunal notice or order. In such cases, the applicant's ability to pursue a claim of discrimination or seek enforcement of their human rights should not be frustrated by a respondent who evades service and is not prepared to respect the Tribunal's jurisdiction as established by the Code.

4The Tribunal relies on an applicant to provide a correct address or other contact information for a person or organization who is named as a respondent. While the Tribunal sends a completed Application to the respondent, it is the responsibility of the applicant to provide accurate contact information. Rule 6.6 of the Tribunal's Rules reads, in part:

An Application accepted by the Tribunal for processing:

a) will be sent by the Tribunal to the Respondent(s), and to any trade union, occupational or professional organization identified in the Application, at the addresses provided in the Application; or

b) will not be dealt with in respect of a Respondent or a trade union, occupational or professional organization that cannot be contacted in accordance with paragraph (a) above, and the Applicant will be so advised;

5Where the Tribunal is satisfied that a respondent has received notice of an Application or Tribunal order, but the respondent has chosen not to respond or comply, in all but the rarest of cases, the Tribunal will deem the respondent to have waived its right to participate pursuant to Rule 5.5(c), deem the respondent to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a) and exercise its discretion under Rule 5.5 to proceed without further notice to the respondent. The respondent will be deemed to have waived its rights to participate in the proceeding and to have accepted all of the facts and allegations in the Application.

6Where however the Tribunal cannot be satisfied that a respondent has received notice of an Application, it may not deal with the Application, as provided in Rule 6.6(b), or may require an applicant to take additional steps to satisfy the Tribunal that the contact information provided will permit effective notice to the respondent. The Tribunal may require an applicant to detail the steps it has taken to ascertain the respondent's contact information or why it believes that the contact information provided is correct and accurate. The Tribunal's "Applicant's Guide" provides some examples of how contact information may be found or verified.

7Where, notwithstanding its best efforts, the applicant is unable to verify that an address or contact information is current or accurate, the Tribunal may accept a declaration by an applicant setting out the respondent's most recent address. In this regard, the Tribunal may have reference, by analogy, to section 18(2) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, as amended, (the "SPPA"), which deals with delivery of final decisions of a Tribunal:

If [a tribunal decision] is sent by regular lettermail, it shall be sent to the most recent addresses known to the tribunal and shall be deemed to be received by the party on the fifth day after the day it is mailed.

(See also: Rule 16.01(4)(b)(i) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides that a document which is not required to be served personally may be mailed to a party's last known address).

8But in such cases, the applicant will be required to show that it made efforts to find a current address for the respondent, and provide information of the steps it took to verify the contact information is the "most recent address", and why it believes it to be so. For example, when dealing with a corporate respondent, or one of its officers, a corporate search may provide information on a most recent address.

9I would note that service of an Application to a respondent's most recent or last known address should only be relied upon as a last resort. There are a number of reasons for this. First, as I mentioned above, natural justice and fairness require that a respondent be given notice of a proceeding. Second, while in appropriate circumstance the Tribunal may deem a respondent to have received notice, where a respondent has not received actual notice and later becomes aware of an order against them, they may be able to successfully obtain reconsideration of the Tribunal decision. Finally, the practical effect of an order against a respondent who cannot be located is limited, since it is unlikely an applicant will be able to enforce any such order.

10In the present case the Notice of Application was mailed to the respondent at the address provided by the applicant and was not returned. The October 23, 2008 decision was sent to the same address by courier but was returned as having a "bad address" and "wrong telephone number." An email sent to the respondent at the email provided by the applicant bounced back as "undeliverable." In the circumstances I am not satisfied that the respondent has received notice of the Application, nor am I prepared at this point to deem the respondent to have received notice. The applicant will be required to make efforts to ascertain an address or contact information at which the respondent can be contacted, or provide information to demonstrate why he believes the address provided in the Application is correct.

11I note that the Application identifies the respondent as the applicant's former supervisor. The applicant has not named his former employer as a respondent. I make no comment as to whether he ought to have named his former employer as a respondent, but it may be that the former employer knows of the contact information for the respondent. If the applicant is unable to find a current and accurate address for the respondent, he may wish to request that the Tribunal issue an order pursuant to Rule 1.7(p) requiring his former employer provide the contact information for the respondent. If such a request were made, the Tribunal would consider the request and determine whether it was appropriate to make such an order.

12In view of the above, the Tribunal makes the following order:

If the applicant wishes to proceed with this Application, he shall:

a. Within 20 days of this decision provide a current and accurate address for the respondent and explain the steps he has taken to ensure that the address is current and accurate;

b. If the applicant believes that the respondent's address as previously provided in the Application is in fact current and accurate, he shall provide the reasons for that belief, and the steps he has taken to verify the address is current and accurate;

c. If the applicant is unable to provide an address which he can verify is current and accurate, he shall provide the respondent's most recent address, and verify why he believes the address provided is the respondent's most recent address;

d. The information provided by the applicant as set out above shall be in a written statement and shall include the following declaration: "I verify that the information provided in this statement is true and accurate to the best of my knowledge and belief". The applicant shall sign and date the statement.

13The Tribunal draws the applicant's attention to the "Applicant's Guide" and in particular to sources of legal assistance and representation available to applicants, including support that may be available through the Human Rights Legal Support Centre. The Guide and links to other sources of information are available on the Tribunal's website, www.hrto.ca, or from the Registrar whose contact information is contained on the cover letter enclosing this decision.