HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tammy Turner

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

507638 Ontario Limited, o/a Park Place Sports Bar and Grill and John Matusiak

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: August 11, 2008

Citation: 2008 HRTO 51

Indexed as: Turner v. 507638 Ontario Limited

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 / 1-800-424-1168 E-mail hrto.registrar-transition@ontario.ca Website www.hrto.ca

WRITTEN SUBMISSIONS BY

Ontario Human Rights Commission ) Sharon Ffolkes-Abrahams, ) Counsel )

INTRODUCTION

1This Interim Decision deals with a request by the Ontario Human Rights Commission (the “Commission”) for a written hearing of this complaint, which alleges discrimination in employment on the basis of disability.

2On the basis of the materials filed by the Commission, I find that sufficient notice has been given to the respondents, who have not participated in the Tribunal’s process nor indicated any intention to participate. Accordingly, the request is granted and this decision serves as a Notice of Written Hearing.

BACKGROUND

3The affidavit filed by the Commission in support of the request outlines in detail its efforts to serve the respondents both before and after referral of the complaint to the Tribunal. It includes the following facts:

a. The Commission sent the complaint to the corporate respondent and the personal respondent on March 14, 2005 at the business address of Park Place Sports Bar and Grill (“the bar”).

b. On March 25, 2005, Mr. Matusiak left a telephone message at the Commission. The intake officer returned the call and asked him to provide a written response to the complaint, which he agreed to do. No response was provided.

c. In November, 2005, following a call to the bar during which the person who answered the telephone said that Mr. Matusiak was no longer an owner, the Commission wrote a letter to Mr. Matusiak at his home address. Mr. Matusiak telephoned the Commission, spoke with a mediation officer, and confirmed he had received the complaint. He was “very angry” about the complaint and hung up on the mediation officer. He called the mediation officer again several days later and agreed to provide a response, which he never did.

d. Mr. Matusiak and the corporate respondent did not respond to further correspondence from the Commission.

e. Following the decision to refer the complaint to the Tribunal, the Commission wrote to both respondents. The letter to Mr. Matusiak was not returned. The letter to the corporate respondent, sent to its registered office address on file with the Ministry of Consumer and Business Services, was returned.

f. The Commission has confirmed that the address at which it wrote to Mr. Matusiak is the address listed in his driver record with the Ministry of Transportation.

g. Mr. Matusiak was or is a co-owner of the corporate respondent.

4In an Interim Decision, Turner v. 507638 Ontario Limited, 2008 HRTO 43, the Tribunal directed the Commission to also send the request to the corporate respondent’s “mailing address” registered with the Ministry of Consumer and Business Services. The Commission has advised the Tribunal that the courier company was unable to deliver the document to that address. Tribunal staff have advised me that correspondence sent by the Tribunal to both the “registered office address” and the “mailing address” by courier was returned, and a further copy was sent to the “mailing address” by regular mail, which has not been returned as of this date. The Tribunal has received no correspondence from either respondent.

DECISION

5The 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 is appropriate if one is requested. In Lestage v. Rénozone Express Inc., 2006 HRTO 24 and Szabo v. Casa Industries et al., 2007 HRTO 21, the Tribunal held that 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.

6From the materials filed, the Tribunal is confident that the respondents have been given adequate notice of the proceeding. Mr. Matusiak has notice of the proceeding and the request for a written hearing through the documents sent to him by courier and by regular mail. He has chosen not to participate. The Commission has also made appropriate efforts to serve the corporate respondent. Correspondence has been sent to its registered office and mailing addresses and Mr. Matusiak, a co-owner, has received notice of the proceeding.

7Accordingly, it is appropriate to hold a written hearing to determine whether the respondents are liable for a violation of the complainant’s rights under the Human Rights Code, R.S.O. 1990, c. H.19, as amended, and the appropriate remedy if a violation is found.

ORDER

8The Tribunal therefore 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 August 21, 2008, 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. 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.

c. If the respondents file submissions as set out above, the Commission and the complainant shall have five days to file and serve their replies.

d. Should the respondents object to a written hearing on the merits, the Tribunal will issue a decision setting out whether the case will proceed by written or oral hearing.

e. Should the respondents fail to provide submissions as set out in paragraph b above or advise the Tribunal of their desire to make submissions and/or present evidence in the written hearing by August 21, 2008, the Tribunal will proceed without their participation and they will not be entitled to any further notice of these proceedings in accordance with section 6(4)(c) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended.

f. Should the respondents fail to provide submissions as set out in paragraph c above, the Commission and the Complainant shall, no later than September 22, 2008, serve and file all evidence, documents, submissions and argument which they ask the Tribunal to consider in making a decision on the merits of the complaint and with respect to the appropriate remedy.

g. This order shall serve as a Notice of Written Hearing.