Taranco v. Michedes, 2009 HRTO 426

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Taranco

Applicant

-and-

Ontario Human Rights Commission

Commission

-and-

Peter Michedes aka Panayitis Michaelides

Respondent

DECISION

Adjudicator: Sheri D. Price

Date: April 9, 2009

Citation: 2009 HRTO 426

Indexed as: Taranco v. Michedes

Reasons for Decision

1This is a Complaint which was referred to the Tribunal by the Commission pursuant to section 36(1) of the old Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The April 17, 2007 Complaint (the "Complaint") alleges discrimination on the basis of age and sex in respect of accommodation.

2On January 20, 2009, and in response to a request by the Commission, the Tribunal determined that this matter would proceed by way of written hearing in light of the fact the respondent had been given notice, but had chosen not to participate in the proceeding.

3Among other things, in my January 20, 2009 decision, I ordered that the Commission effect personal service of the January 20, 2009 decision on the respondent; that the respondent deliver to the Commission and the complainant and file with the Tribunal any objection to proceeding by way of written hearing or advising of his desire to make submissions or present evidence in the written hearing by no later than January 30, 2009; and, in the absence of any submissions by the respondent, that the Commission and the complainant deliver and file all evidence (in affidavit form), documents, submissions and argument which they ask the Tribunal to consider in making a decision on the merits of the complaint and with respect to the appropriate remedy by no later than February 13, 2009.

4The respondent did not file any submissions with the Tribunal objecting to proceeding by way of written hearing in this matter or indicating his desire to make submissions or present evidence at the written hearing.

5In spite of the Tribunal's January 20, 2009 order, neither the complainant nor the Commission have presented any evidence, documents, or submissions in this matter by February 13, 2009 or otherwise. In fact, counsel for the Commission communicated to the Registrar's office that neither the Commission nor the complainant would be submitting anything further in response to the January 20, 2009 decision.

6In its January 20, 2009 decision, the Tribunal specifically directed the parties to its decision in Sanford v. Koop, 2005 HRTO 28, with respect to "the requirement for evidence in the written hearing context" for cases referred to the Tribunal by the Commission under the old Part IV. In Sanford v Koop, the Tribunal stated at pars. 26 to 30:

26... [S]ince the Code does require the holding of a hearing, the parties must provide a sufficient basis to enable the Tribunal to make the necessary findings to support the allegations and to support the desired remedial requests. If there is a difference between a "default judgment" and a "hearing", then in the Tribunal's view, in the absence of any Rules which provide otherwise, the parties must provide something more than mere pleadings....

27This is not to say that where a respondent chooses not to participate and the evidence will be uncontested, that the scope of evidence required will be the same as in a regular hearing. Still, a party seeking that the Tribunal make findings of fact, including determinations that a respondent has violated the Code, and requesting certain remedies, must ensure that there is sufficient evidence before the Tribunal to support such findings, determinations and orders.

28In addition, the parties will no doubt want to provide submissions and argument in support of their positions.

30Again, case law suggests that mere pleadings will not be sufficient to establish an evidentiary basis for findings of fact and remedial orders, where a hearing is required to be held... The Tribunal finds however that affidavits or statutory declarations by persons who would otherwise have provided viva voce evidence had the hearing been held as an oral hearing would be a proper form of evidence. These could contain statements based on personal knowledge, or information and belief (as long as the basis for the information and belief was set out in the affidavit). Also, business records and medical reports which would normally be admissible before the Tribunal without the necessity of calling the maker of the document, would generally be admitted. The Tribunal would retain the power to question an affiant, or rule or place conditions upon the admissibility of a document.

7To date, neither the complainant nor the Commission have provided the Tribunal with anything other than "mere pleadings". That is, other than the Commission's hearing brief which sets out its pleadings in this matter, the complainant and the Commission have failed to provide the Tribunal with affidavits or statutory declarations or any other form of evidence which would constitute "a sufficient basis to enable the Tribunal to make the necessary findings to support the allegations and to support the desired remedial requests."

8Accordingly, the Tribunal finds that there is no sufficient basis upon which to find that the respondent violated the Code or to make the remedial orders sought by the Commission and the complainant in this matter.

9The Complaint is therefore dismissed.