Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 1

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Guy Esanu Applicant

-and-

Georgetown Men’s Non-Contact Hockey League, Tim Lester and Neil Robshaw Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price Date: January 2, 2009 Citation: 2009 HRTO 1 Indexed as: Esanu v. Georgetown Men’s Non-Contact Hockey League

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 September 24, 2008, alleging discrimination in respect of services on the basis of ethnic origin and creed. This Interim Decision addresses the personal respondents’ failure to file Responses to the Application, the applicant’s delay in filing the Application, and the assertion that the contact person for the Georgetown Men’s Non-Contact Hockey League (“the League”) does not have authority to represent the League.

PERSONAL RESPONDENTS’ FAILURE TO FILE RESPONSES

2On September 30, 2008, the Tribunal sent the Application to the respondents by regular mail at the addresses provided by the applicant, together with a direction to respond no later than thirty five (35) days from that date, in accordance with the Tribunal Rules. Under Rule 1.22 of the Tribunal’s Rules of Procedure, a document delivered by mail is deemed received five days after the postmark date.

3It has now been more than ten days since the Responses were due. Although the League filed a Response through the contact person identified by the applicant, the Tribunal has received no Response from the personal respondents, Tim Lester and Neil Robshaw, nor has its correspondence to those individuals been returned.

4A Tribunal Application 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 may lead to orders against respondents without further notice or their participation. The personal respondents’ attention is drawn to Rule 5.5 of the Tribunal’s Rules of Procedure, which reads as follows:

5.5 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.

The personal respondents are directed to file their Responses to the Application and provide an explanation as to why their Responses were not filed in accordance with the Tribunal’s Rules, within 10 days of the date of this decision. If a Response is not received from the personal respondents by this date, the Tribunal may proceed without further notice to any personal respondent not filing a Response, and may take any or all of the other steps set out in Rule 5.5

DELAY IN FILING THE APPLICATION

5The Application states that the date of the last (and apparently only) event to which the Application relates was January 30, 2006. The applicant states that he is applying more than a year after the last event because he feared further harassment for being a “whistle-blower”, feared creating an environment of hostility among his fellow teammates as there was still the balance of the season to play, and believed a formal complaint would have ended his ability to play in the League. He states that he now realizes that ignoring the issue and failing to take action was to “further condone it and future incidents at the same time”.

6Section 34 of the Code reads:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection 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.

7The Application in this matter was filed almost two years and eight months after the incident to which the Application relates. Thus, there is a significant issue regarding the Tribunal’s power to hear this matter as a result of the delay. Accordingly, the Registrar will schedule a hearing by teleconference, not earlier than 28 days from the date of this decision, to hear submissions from the parties on whether the Application is barred as a result of s. 34 of the Code. During that teleconference, the applicant should be prepared to explain why he believes that the delay in filing the Application was incurred in good faith and that no substantial prejudice will result to any person affected by the delay. The League may make submissions in response and explain what, if any, substantial prejudice will result to them or any other affected person because of the delay.

8The personal respondents will be given notice of the teleconference. If one or both seeks to participate in the teleconference and has not filed a Response in accordance with this decision, the Tribunal will determine whether they will be permitted to make submissions on the delay issue and any prejudice resulting to them because of delay in the absence of a Response.

LEAGUE REPRESENTATIVE

9The League has filed a timely Response through the individual identified by the applicant as a contact person for the League, Roger Morrell. However, in the Response, Mr. Morrell asserts that neither he nor any other individual has the authority to “speak for” the League or to negotiate on its behalf and bind it. He indicates that there is a League executive comprised of 10 individuals, all of whom are volunteers.

10As a party to the Application, the League is entitled to participate in this proceeding, notwithstanding its status as an unincorporated or volunteer organisation. Whether it does participate and who acts as its representative are decisions for the League to make.

11The League is directed to advise the Registrar, within 21 days of the date of this decision, whether Mr. Morrell or another individual will act as its representative. If the League chooses to be represented by an individual other than Mr Morrell or collectively by one or more members of its Executive, the name and contact information for that individual or individuals must be provided to the Registrar as soon as possible and in any event no later than 21 days of the date of this decision.

12I am not seized of this matter.