Robert Burns v. Employer’s Choice Staffing of Canada Ltd., 2008 HRTO 363

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Burns

Applicant

-and-

Employer’s Choice Staffing of Canada Ltd.

Respondent

INTERIM DECISION

Adjudicator: Michael Gottheil

Date: December 9, 2008

Citation: 2008 HRTO 363

Indexed as: Burns v. Employer’s Choice Staffing of Canada

INTRODUCTION

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on July 17, 2008. The Application alleges discrimination in employment on the ground of disability and sex. Specifically, the applicant alleges that after he suffered a work-related injury while employed by the respondent, the respondent did not provide appropriate modified work, but rather required him to do demeaning and useless work, in an effort to force him to quit. The applicant also alleges that he was harassed and treated differently than other employees, again in an effort to have him quit. Finally, he alleges that a message with offensive, sexual content was left on his desk, and the respondent refused to make any efforts to investigate its source or take any actions against the individual(s) who sent the message. The facts giving rise to this Application occurred between September and December 2005.

2On October 23, 2008 the Tribunal issued an Interim Decision (2008 HRTO 185), determining that if the respondent wished to participate in the proceeding, it was required to file a Response to the Application no later than October 31, 2008. The respondent has not filed a Response and has not contacted the Tribunal. As a result, the Tribunal will proceed without the participation of the respondent.

3This decision makes certain findings in relation to the Application and provides case assessment directions to the applicant in order that the Tribunal may finally dispose of the Application.

CONSEQUENCE OF THE FAILURE OF THE RESPONDENT TO COMPLY WITH THE TRIBUNAL’S RULES AND DIRECTION

4As noted in the October 23, 2008 decision, the Application was originally sent to the respondent by the Tribunal on August 19, 2008. The correspondence was returned as undeliverable. The Applications was resent to the respondent on September 11, 2008 to an updated address which the applicant provided to the Tribunal. The Notice of Application which accompanied the Application provided specific instructions to the respondent, referenced various information to assist the respondent in completing the Response, and indicated that a Response was due 35 days from the date of the Notice. The respondent failed to file a Response or otherwise contact the Tribunal. The September 11, 2008 correspondence sent to the respondent was not returned as undeliverable.

5The Tribunal’s practice in circumstances where a respondent fails to file a Response to an Application within 35 days is to issue a “no response” decision. A “no response” decision explains that an Application under the Code commences a legal proceeding against the respondent. The decision gives the respondent one week to file a Response and explain why a Response was not previously filed in accordance with the Tribunal’s Rules.

6The decision further cautions that failure to file a Response as directed will result in the Tribunal proceeding without further notice to the respondent, and the Tribunal may take additional steps under Rule 5.5. That Rule reads as follows:

Where an Application 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;

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 may take any of the other steps in Rule 5.5.

7The Tribunal sends the decision to the respondent by courier, as well as by fax and/or e-mail, if that contact information is available.

8In the present case, the October 23, 2008 “no response” decision was sent to the respondent by courier. Purolater Courier has confirmed the decision was received and signed for at the respondent’s business location on October 27, 2008. In the circumstances, I am satisfied that the respondent has received notice of the Application and of these proceedings, but has chosen not to participate.

9Further, I find that it is appropriate to deem the respondent to have accepted all of the facts alleged in the Application, and to have waived any right to participate in these proceedings.

10The Code is an important public statute which enshrines our most basic and fundamental rights and freedoms. The enforcement procedures in the Code are equally important, since without an effective means of claiming a violation of a right, and seeking redress where a violation is found, those fundamental human rights would have little meaning.

11The procedures established by the Tribunal’s Rules provide a mechanism to resolve disputes arising under the Code fairly and expeditiously. An individual who believes his or her rights have been infringed may bring an application. That application must be complete and set out the allegations which, in the applicant’s view, constitute a violation of the Code. Before serving an application on the person or organization named as a respondent, the Tribunal will review the application to ensure that it is complete and that it appears to be within the jurisdiction of the Code.

12Once served with an application, if the respondent wishes to participate and defend against the claim made by the applicant, the respondent has only to file a Response. The Tribunal provides a respondent with clear notice of what is required, and has prepared a Guide which assists a respondent in completing its Response. The Response also provides a respondent with an opportunity to indicate which facts or allegations in the application are agreed to and which are disputed.

13A respondent who refuses or chooses not to file a Response should not be able to frustrate the objects of the Code, and the applicant’s right to assert a claim and seek a timely determination of that claim. Section 40 of the Code requires the Tribunal to dispose of Applications in a way which will provide for “a fair, just and expeditious resolution of the merits of the application.” Where no Response is filed, in order to fulfill this statutory mandate, the Tribunal will proceed to determine the Application in the absence of the respondent. 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) and deem the respondent to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a).

14Rule 5.5(d) permits the Tribunal to decide an Application based only on the materials before it. However, the Tribunal will exercise this discretion only after providing the applicant an opportunity to file additional materials and make oral submissions. There are two reasons for this. First, the Rules and the Application do not require an applicant to submit all documents which they may wish to rely upon when filing the Application. The procedure contemplates that prior to a hearing, the parties will exchange documents, may request orders for disclosure, and may submit additional materials they wish to rely upon to establish their respective cases.

15Second, section 43(2)1 of the Code provides that the Tribunal may not finally dispose of an Application (that is within its jurisdiction) without first providing the parties an opportunity to make oral submissions. Therefore, an applicant must be provided an opportunity to make submissions before the Tribunal finally determines the Application.

DECISION

Case Assessment Direction

16Rule 18.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may prepare and send the parties a Case Assessment Direction where it considers it appropriate. The Case Assessment Direction may address any matter that, in the opinion of the Tribunal, will facilitate the fair, just and expeditious resolution of the Application and may include directions made in accordance with any of its powers in Rule 1.6 and 1.7.

17The purpose of a Case Assessment Direction will depend on the circumstances of a particular application and when it is issued, but generally it will provide instructions to the parties on what issues the Tribunal considers important to address in the hearing and the order in which they will be dealt with. It may also identify evidence the Tribunal considers may be helpful, or seek submissions from the parties on why certain evidence or witnesses the parties wish to present are necessary to the determination of the issues in dispute. The approach to managing a particular case as explained in a Case Assessment Direction will always be based on the requirement set out in section 40 of the Code that the Tribunal adopt practices and procedures which will provide the best opportunity for a fair, just and expeditious resolution of the merits of an application.

18In the present case, I will defer making a final ruling on the Application until after the applicant has had the opportunity to provide additional materials and make oral submissions. In my view, the most fair and expeditious way in which to deal with this Application is to schedule a half day, in person hearing.

19At the hearing, the applicant need not present evidence on the facts already set out in his Application. Since I have found that the respondent is deemed to have accepted the facts and allegations set out in the Application, I am prepared to treat those facts as uncontradicted evidence.

20In addition to any other issues the applicant may choose to address, the Tribunal directs that he address the following:

a. The applicant alleges that the respondent infringed his right to be free from discrimination in employment based on disability because it harassed him and gave him meaningless, degrading work in an effort to force him to quit. Accepting that harassing and attempting to force a disabled employee to quit may be a violation of the Code, is the applicant also arguing that the failure to provide meaningful modified work, in and of itself, constitutes a violation of the Code?

b. The applicant seeks substantial damages for lost wages, including compensation for wage loss up to his normal retirement age. The applicant should be prepared to substantiate this claim, both factually and legally.

21I am however prepared, at this point, to deal with the question of whether this Application should be accepted, notwithstanding the incidents related to the Application occurred more than one year prior to the date it was filed. As noted at the outset, the facts giving rise to this Application occurred between September and December 2005.

22Section 34(2) of the Code provides that a person may make an application outside of the one year limitation period “if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.”

23The applicant has provided reasons for the delay in filing the Application. He explained that while he was working for the respondent and in the months following his termination, he was receiving treatment several times a week for the injury as well as participating in a full time labour market re-entry program through the Workplace Safety and Insurance Board. He also explains that he then experienced a period of depression and eventually developed a serious addiction problem. He then entered treatment for his addiction and pursued a regime of therapy for his depression. As he stated in the Application:

Each and every day is a struggle for me. There is just no possible way that I could have filed this application before now. I trust you will have some compassion for my situation and allow me to move forward with my application. At the very least, please allow me to tell my story.

Based on the information provided by the applicant, I have no reason to doubt that the delay was incurred in good faith.

24As for whether the delay would result in substantial prejudice to the respondent, since the respondent has chosen not to participate in this proceeding, I have no evidence before me to suggest the respondent would suffer prejudice. In assessing whether delay would result in prejudice, the Tribunal has said that a respondent must establish that it would suffer real, as opposed to potential prejudice. The Tribunal will not assume prejudice by the mere passage of time. (See: Ford Motor Co. of Canada v. Ontario (Human Rights Commission), 1995 CanLII 7431 (ON CTGD), [1995] O.J. No. 4292)

25In view of the above, I make the following order:

a. The respondent is deemed to have accepted all of the allegations set out in the Application;

b. The respondent is deemed to have waived any right to participate in this proceeding;

c. The Tribunal accepts the Application for filing, notwithstanding that it was filed outside the one year statutory limitation period, pursuant to its discretion under section 34(2);

d. Within 3 weeks of receiving this decision the applicant may submit any additional document he wishes the Tribunal to consider in making its final order;

e. The Tribunal shall schedule a half day hearing to hear any additional submissions the applicant may choose to provide.