Ouwroulis v. New Locomotion, 2009 HRTO 237

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kimberlee Ouwroulis Applicant

-and-

New Locomotion and John Sit Respondents

INTERIM DECISION

Adjudicator: Michael Gottheil Date: March 4, 2009 Citation: 2009 HRTO 237 Indexed as: Ouwroulis v. New Locomotion

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code") alleging discrimination in employment on the ground of age. The Application was filed on September 16, 2008. The matter is scheduled for hearing on March 24 and 25, 2009.

2This Interim Decision addresses a Request for Order During Proceeding filed by the respondent, as well as an issue regarding the Tribunal's inability to contact the applicant.

3On January 22, 2009 the respondents filed a Request for Order During Proceeding seeking to amend the Response. The Request was served on counsel for the applicant in accordance with the Tribunal's Rules. However, on February 4, 2009, the Tribunal received notice that counsel originally retained no longer represented the applicant.

4By letter dated February 13, 2009, the Tribunal sent a copy of the Request for Order directly to the applicant at her address provided in the Application, and advised that the time for responding to the Request was extended to February 20, 2009. That correspondence was returned to the Tribunal on February 26, 2009.

5On February 26, 2009 the Tribunal attempted to contact the applicant by email, at the address provided in the original Application, and at an address from which an email was received from the applicant. Both emails were returned as undeliverable. The applicant has not provided the Tribunal a notice of change of address or alternative contact information as required by Rule 1.13.

REQUEST TO AMEND RESPONSE

6The original Response filed alleged that age played no role in the decision to terminate the applicant's employment. The respondents now seek to amend the Response to argue, in the alternative, that age was a bona fide occupational qualification ("BFOQ"). The respondents do not seek to add substantial facts to the Response.

7The Request made by the respondents is to allow them to make an alternative legal argument at the hearing. The Tribunal Rules do require parties to fully set out their respective positions. However, the Tribunal Rules and the Code are designed to ensure a fair, just and expeditious determination of the merits of an application.

8In the current circumstances, the respondents made their request two months before the hearing. In the absence of any prejudice to the applicant being established, I am prepared to grant the Request.

INABILITY OF THE TRIBUNAL TO CONTACT THE APPLICANT

9As noted above, the Tribunal has been unable to contact the applicant at the street or email address provided in the Application. Nor has the applicant advised the Tribunal of a change of address or contact information as required by the Rules. This raises some concern as to whether the applicant continues to be interested in pursuing her Application.

10The applicant must provide the Tribunal, no later than March 13, 2009, a current mailing address, telephone number, and email address (if available). The applicant must also confirm that she remains interested in proceeding with her Application.

11The applicant should, at the same time, provide this updated contact information to counsel for the respondents.

12If the applicant fails to provide current contact information as directed, and confirm that she is interested in proceeding with the Application, the Tribunal may decide to cancel the hearing dates and deem the applicant to have abandoned the Application.

13This Interim Decision shall be sent to the applicant by regular mail and courier at the mailing address provided in the Application. The Tribunal will also attempt to email this decision at the email addresses the Tribunal currently has on file.