Verduci v. Irandoust, 2009 HRTO 1585

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Saverio Verduci Applicant

-and-

Farideh Irandoust, Kathryn Rippey, Olga Cook, Jeff Blair and William Blair Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty Date: September 30, 2009 Citation: 2009 HRTO 1585 Indexed as: Verduci v. Irandoust

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 6, 2009 in which he alleges discrimination on the basis of race and ethnic origin in the provision of goods, services or facilities. The essence of the applicant's allegations is that the respondents (all of whom appear to be employees of the Toronto Police Service or the Ontario Civil Commission on Police Services) discriminated against him by issuing him a ticket for failing to wear a seatbelt and by failing to appropriately consider and investigate the applicant's claims that he was, in fact, wearing a seatbelt at the material times.

BACKGROUND

2The Tribunal mailed the Application and a Notice of Application to each respondent on August 6, 2009. The documents mailed to the respondent, Olga Cook, were returned to the Tribunal as undeliverable.

3The applicant subsequently filed a Request for an Order during Proceedings requesting an order that Olga Cook be required to respond to the Application.

4On August 26, 2009, a Request for an Order during Proceedings was filed on behalf of the respondents, Farideh Irandoust and Kathryn Rippey, requesting that the Application be dismissed as against these two respondents. These respondents argue that, in essence, the Application is an attempt to appeal the decision of the Ontario Civil Commission on Police Services ("Civil Commission"). These respondents also argue that the Application does not relate to the provision of services, goods or facilities, within the meaning of the Code and that, in any event, the applicant has not identified how the respondents Irandoust and Rippey allegedly discriminated against him. For these reasons, these respondents argue that the Application is not within the Tribunal's power to decide.

5The remaining respondents, Jeff Blair and William Blair, have not communicated with the Tribunal and have not filed a Response to the Application. Time for doing so under the Rules has elapsed.

SERVICE ON OLGA COOK

6It would appear from the documents filed with the Tribunal that the respondent Olga Cook is or was an employee of the Toronto Police Service.

7Rule 1 of the Tribunal's Rules of Procedure states that the Tribunal may:

Require a party or other person to produce any document, information or thing and to provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form. (See also s. 43 (3) of the Code.)

8Within five days of the date of this Interim Decision, the Toronto Police Service is required to advise the applicant and the Tribunal whether it is prepared to accept service of the Application on behalf of the respondent, Olga Cook. In the event that it does not accept service of the Application, the Toronto Police Service must, within five days of the date of this Interim Decision, disclose to the Tribunal the most recent contact information it has regarding the respondent, Olga Cook.

REQUIREMENT TO RESPOND TO THE APPLICATION

9Rule 1.22 of the Tribunal's Rules of Procedure confirms that a document delivered by mail is deemed received five days after the postmark date.

10It is now more than ten days after the date for the filing of the Response. The respondents Jeff Blair and William Blair have not filed a Response or otherwise communicated with the Tribunal and the Tribunal's Notice has not been returned.

11A Tribunal application is a legal proceeding. If a violation of the Code is found the Tribunal may order a respondent to make monetary compensation or other forms of restitution to the applicant and to take steps to promote future compliance with the Code. Failure to file a response may lead to orders against a respondent without their participation. The respondents' attention is drawn to Rule 5.5 of the Tribunal's Rules which 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.

12If the respondents Jeff Blair and William Blair wish to participate in this proceeding, a Response must be filed within ten days of the date of this Interim Decision together with an explanation why a Response was not filed in accordance with the deadline contained in the Notice of Application. If the Response is not received by this date, the Tribunal shall proceed without further notice to these respondents, and may take any or all of the other steps set out in Rule 5.5.

13The applicant has provided an address for both these respondents. The Tribunal will send a copy of this Interim Decision to the respondents by regular mail.

REQUIREMENT TO FILE A COMPLETE RESPONSE BEFORE RAISING PRELIMINARY ISSUES

14The respondents Farideh Irandoust, Kathryn Rippey have filed a Request for an Order with the Tribunal, but have not filed a complete Response to the Application.

15As a matter of course, the Tribunal requires respondents to file complete responses prior to making any preliminary objections, including those relating to jurisdiction. The limited exceptions to this general rule are outlined in Rule 8.2 and summarized as follows in Masood v. Bruce Power, 2008 HRTO 381, at para. 8:

The Tribunal's response form permits a request for early dismissal without a full response in only three circumstances: where the respondent alleges that a claim for relief based upon the same facts was filed in civil court, that a complaint was filed with the Ontario Human Rights Commission based upon the same, or substantially the same facts, or that a full and final release was signed. In all other circumstances, respondents must file a full response, even where a preliminary or jurisdictional issue is being raised.

16The Tribunal in Masood created an additional fourth category of cases in which a full Response may not be necessary, namely when the respondent alleges that the matter falls under federal jurisdiction. The preliminary issues raised by the respondents Irandoust and Rippey do not fall into any of the four categories identified in Masood.

17As the Tribunal indicated in Grant v. Bombardier, 2009 HRTO 267, the filing of a complete response is an integral part of the Tribunal's process. It allows the parties to better understand the nature of the issues and assists the Tribunal in determining how best to proceed with the Application with a view to facilitating its fair, just and expeditious resolution, including making preliminary determinations.

18The respondents Farideh Irandoust and Kathryn Rippey are directed to file a complete Response within ten days of this Interim Decision. Not later than 14 days after receipt of the Response, the applicant may file a Reply, if he wishes. The Reply should deal only with new matters raised in the Response.

19A copy of this Interim Decision will be mailed and couriered to the Legal Services department of the Toronto Police Service.

20I am not seized of this matter.