Philip Sofianos v. Garda World Security Corporation, 2009 HRTO 2131

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Philip Sofianos

Applicant

-and-

Garda World Security Corporation

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: December 9, 2009

Citation: 2009 HRTO 2131

Indexed as: Sofianos v. Garda World Security

Background

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 June 19, 2009 alleging that the respondent, Garda World Security Corporation, discriminated against him in respect of employment on the basis of disability. At the time he filed the Application, the applicant also filed a Request to Expedite the Application and a Request for an Interim Remedy.

2By Interim Decision, 2009 HRTO 1256, the Tribunal denied the Request to Expedite and the Request for an Interim Remedy. On August 19, 2009, the Tribunal couriered the respondent a copy of the Application, a Notice of Application, a copy of a Request to Expedite and a Request for an Interim Remedy and the Interim Decision denying the two requests. The Notice of Application directed the respondent to file a Response with the Tribunal no later than thirty-five (35) days from the date of the Notice.

3The couriered materials were returned to the Tribunal as undelivered. They were then resent on August 26, 2009 by regular mail to the respondent and were not returned. Pursuant to the Tribunal’s Rules, documents sent by regular mail are deemed to have been received five days after the postmark date. The respondent did not file a Response to the Application as directed in the Notice of Application.

4On October 26, 2009, the Tribunal issued a further Interim Decision, 2009 HRTO 1776, regarding the respondent’s failure to file a Response to the Application and directing the respondent to file a Response to the Application and advised as to the possible consequences of failing to file a Response. The October 26, 2009 Interim Decision was sent to the respondent by regular and registered mail. The registered mail was returned to the Tribunal as undeliverable with an indication that the respondent had “moved”. The regular mail was not returned to the Tribunal.

DECISION

5As the Tribunal noted in Guild v. Kyle-Jansen, 2008 HRTO 347,

The Tribunal must take a balanced approach in situations where a respondent has not filed a Response and there is no certainty that the respondent has received actual notice of an Application. Natural justice and fairness requires that an individual or organization named as a respondent be given notice of the proceeding and an opportunity to participate in accordance with the Tribunal’s Rules. On the other hand, there may be circumstances where a respondent purposely evades receipt of an Application or a Tribunal notice or order. In such cases, the applicant’s ability to pursue a claim of discrimination or seek enforcement of their human rights should not be frustrated by a respondent who evades service and is not prepared to respect the Tribunal’s jurisdiction as established by the Code…

Where the Tribunal is satisfied that a respondent has received notice of an Application or Tribunal order, but the respondent has chosen not to respond or comply, 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), deem the respondent to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a) and exercise its discretion under Rule 5.5 to proceed without further notice to the respondent.

6As the Tribunal noted in Guild, supra, proceeding in the absence of a respondent is a serious step and one which the Tribunal does not take lightly. In this case, the Notice of Application, the Application and both Interim Decisions were sent to the respondent via regular mail and not returned. In accordance with the Rules, the Tribunal could, at this point, deem the respondent to have waived its right to participate in the Application and proceed in its absence. In this case, however, the materials sent to the respondent by courier and registered letter were returned as undeliverable, which gives me concern that, in spite of the fact that the regular mail was not returned, the respondent may not have received Notice of this Application.

7The applicant has provided the Tribunal with an alternate address for the respondent. He also provided email and fax contact information for the Human Resources Manager at the respondent.

8The Tribunal will send a copy of this Interim Decision to Garda World Security Corporation, along with a copy of the Notice of Application and the Application, by fax to the fax numbers provided for the respondent by the applicant. The Tribunal will also send these materials by email to the email address provided for the Human Resources Manager in the Application, and by registered mail to the two addresses provided by the applicant, “Attention of Anand Majarah or the Human Resources Manager”.

9If the respondent wishes to participate in this proceeding, the respondent is hereby directed to file a Response to the Application within 10 days of the date of this Interim Decision. Otherwise, it may be deemed to have accepted all of the allegations in the Application and the Tribunal may proceed in its absence without further notice, and may take any or all of the other steps set out in Rule 5.5.