Judy Atkinson v. Essex Condominium Corp. #5, 2009 HRTO 1266

Human Rights Tribunal of Ontario

BETWEEN:

Judy Atkinson Applicant

-and-

Essex Condominium Corp. #5 Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: August 14, 2009 Citation: 2009 HRTO 1266 Indexed as: Atkinson v. Essex Condominium Corp. #5

1The purpose of this Interim Decision is to deal with the absence of information about another proceeding in the Application, and the respondent’s failure to file a Response to the Application.

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleges that the respondent discriminated against her because of her disability and subjected her to reprisal with respect to housing.

3The applicant checked off “no” to question 15 a) of the Application, which asks whether the facts of the Application were part of some other proceeding that is now completed. However, she also attached a chronological narrative and a condominium newsletter to her Application, which indicates that in September 2008 there was a court proceeding and decision that may have dealt with the facts of her Application.

4On May 21, 2009, the Tribunal issued a Notice of Application and delivered the Application to the respondent by regular mail at the address provided by the applicant. The Notice directed the respondent to file a Response with the Tribunal no later than thirty-five (35) days from the date of the Notice. The respondent did not file a Response by the deadline or otherwise communicate with the Tribunal, and the Tribunal’s Notice was not returned.

5On July 21, 2009, the Tribunal issued an Interim Decision, 2009 HRTO 1087, which drew the respondent’s attention to Rule 5.5 of the Tribunal’s Rules of Procedure, which provides:

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.

6The Interim Decision also stated:

If the respondent wishes to participate in this proceeding, it shall file a Response by July 31, 2009, together with an explanation why its Response was not filed by the deadline in accordance with the Tribunal’s Rules. If a Response is not received by this date, the Tribunal may proceed without further notice to the respondent and may take any or all of the other steps set out in Rule 5.5.

7The Tribunal sent the Interim Decision to the respondent by Purolator courier at the address provided by the applicant. Purolator has confirmed that the Interim Decision was delivered and received on July 22, 2009 at 11:49 AM. The respondent did not file a Response by July 31, and has not otherwise communicated with the Tribunal to date.

8The Tribunal will not make a decision about the respondent’s failure to file a Response to the Application until the applicant submits copies of relevant documents from the September 2008 legal proceeding. The Tribunal therefore orders that the applicant file the parties’ pleadings and the court’s decision by August 21, 2009.

9I have also noted that the Application identifies the respondent as the building superintendent, the property manager, and the condominium’s board of directors, but only lists the address of the property manager in her Application. Furthermore, the property manager’s address is at a different location than the condominium building. In my view, it is fair and just for the Tribunal to send the Application, the Tribunal’s previous Interim Decision, and this Interim Decision to the building superintendent and the chair of the board of directors.

10If the respondent wishes to participate in this proceeding, it shall file a Response by August 21, 2009, together with an explanation why its Response was not filed by the deadline in accordance with the Tribunal’s Rules.

11I am not seized of this matter.