Kearns v. 1327827 Ontario, 2009 HRTO 457

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Kearns

Applicant

-and-

1327827 Ontario Limited and Anthony Motuzas

Respondents

INTERIM DECISION

Adjudicator: Michael Gottheil

Date: April 17, 2009

Citation: 2009 HRTO 457

Indexed as: Kearns v. 1327827 Ontario

INTRODUCTION

1This is an Application filed on October 7, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”), alleging discrimination in employment on the ground of disability.

2The Tribunal has issued two previous Interim Decisions, 2008 HRTO 353 (the December 08 decision) and 2009 HRTO 269 (the March 09 decision), directing the respondents to file their respective Responses to the Application. To date, neither respondent has filed a Response. This Interim Decision disposes of certain aspects of the Application, and provides case assessment directions to the applicant in order that the Tribunal may finally dispose of the Application.

CONSEQUENCE OF FAILURE OF THE RESPONDENT TO COMPLY WITH THE TRIBUNAL’S RULES AND DIRECTIONS

3In the December 08 decision, the Tribunal directed the respondents to file their Responses no later than December 8, 2008, and cautioned that failure to comply with the Tribunal’s Rules and directions could result in the Tribunal taking steps under Rule 5.5.

4On January 15, 2009, the Tribunal received email correspondence from Donna Churchill (identified as Office Administrator), seeking an extension to file a Response, on the basis that the President of the corporate respondent had recently passed away. On January 19, 2009, the individual respondent (who is identified as Controller) sent correspondence on the corporate respondent’s letterhead, to the same effect. Mr. Motuzas stated: “We request a schedule date in February to contest the application and the interim findings of the Tribunal.” Neither correspondence was copied to the applicant as required by the Tribunal’s Rules.

5In its March 09 decision, the Tribunal noted that still no Responses had been filed. The Tribunal acknowledged the circumstances identified in the January correspondence from the respondents, and as a result, granted an extension to March 20, 2009 for the respondents to file their Responses. The Tribunal reminded the respondents of the obligation to copy the applicant on all correspondence.

6On April 2, 2009, the Tribunal received a telephone call from Ms. Churchill indicating that she had just returned from vacation and was intending to file a Response. The Tribunal staff informed Ms. Churchill that she must put any communication to the Tribunal in writing, with a copy to the applicant. To date, the Tribunal has not received anything further from the respondents.

7The Tribunal’s practice in circumstances where a respondent fails to file a Response to an application within 35 days, is to issue a “no response” decision. A “no response” decision explains that an application under the Code commences a legal proceeding against the Respondent. The decision gives the respondent one week to file a Response and explain why a Response was not previously filed in accordance with the Tribunal’s Rules.

8The decision further cautions that failure to file a Response as directed will result in the Tribunal proceeding without further notice to the respondent, and the Tribunal may take additional steps under Rule 5.5. That Rule 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 may take any of the other steps in Rule 5.5.

9The Tribunal sends the decision to the respondent by courier, as well as by fax and/or email, if that contact information is available.

10In the present case, it is clear that the respondents received the December 08 “no response” decision. The respondents then sought, and were granted a further extension to file their Responses. They have not done so. In the circumstances, I find that it is appropriate to deem the respondents to have accepted all of the facts alleged in the Application, and to have waived any right to participate in these proceedings.

11The Code is an important public statute which enshrines our most basic and fundamental rights and freedoms. The enforcement procedures in the Code are equally important, since without an effective means of claiming a violation of a right, and seeking redress where a violation is found, those fundamental human rights would have little meaning.

12The procedures established by the Tribunal’s Rules provide a mechanism to resolve disputes arising under the Code fairly and expeditiously. An individual who believes his or her rights have been infringed may bring an application. That application must be complete and set out the allegations which, in the applicant’s view, constitute a violation of the Code. Before serving an application on the person or organization named as a respondent, the Tribunal will review the application to ensure that it is complete and that it appears to be within the jurisdiction of the Code.

13Once served with an application, if the respondent wishes to participate and defend against the claim made by the applicant, the respondent has only to file a Response. The Tribunal provides a respondent with clear notice of what is required, and has prepared a Guide which assists a respondent in completing its Response. The Response also provides a respondent with an opportunity to indicate which facts or allegations in the application are agreed to, and which are disputed.

14A respondent who refuses, or chooses not to file a Response should not be able to frustrate the objects of the Code, and the applicant’s right to assert a claim and seek a timely determination of that claim. Section 40 of the Code requires the Tribunal to dispose of applications in a way which will provide for “a fair, just and expeditious resolution of the merits of the application.” Where no Response is filed, in order to fulfill this statutory mandate, the Tribunal will proceed to determine the application in the absence of the respondent. 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) and deem the respondent to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a).

15While Rule 5.5(d) permits the Tribunal to decide an application based only on the materials before it, the Tribunal will exercise this discretion only after providing the applicant an opportunity to file additional materials and make oral submissions. There are two reasons for this. First, the Rules do not require an applicant to submit all documents which they may wish to rely upon when filing the application. The procedure contemplates that, prior to a hearing, the parties will exchange documents, may request orders for disclosure, and may submit additional materials they wish to rely upon to establish their respective cases.

16Second, section 43(2)1 of the Code provides that the Tribunal may not finally dispose of an application within its jurisdiction without first providing the parties an opportunity to make oral submissions. Therefore, unless this right is waived, an applicant must be provided with an opportunity to make submissions before the Tribunal finally determines the application.

17While the applicant has an opportunity to submit additional materials and documents, and make oral submissions, he need not call evidence on the facts set out in his Application. Since I have found the respondent is deemed to have accepted the facts and allegations set out in the Application, I am prepared to treat those facts as uncontradicted evidence.

18To summarize, I find that it is appropriate to deem the respondents to have accepted all of the allegations set out in the Application, and to have waived any right to participate in these proceedings. The applicant will be provided an opportunity to file any documents or materials he may wish the Tribunal to consider, and will be provided an opportunity to make oral submissions before the Tribunal finally determines the Application.

19For the reasons set out above, I make the following order:

a. The respondents are deemed to have accepted all of the allegations set out in the Application;

b. The respondents are deemed to have waived all rights to notice or participation in these proceedings;

c. Within 3 weeks of the date of this Interim Decision the applicant may submit any additional document he wishes the Tribunal to consider in deciding this Application;

d. At the same time, he shall indicate whether he wishes to make oral submissions before the Tribunal finally disposes of this Application and issues a remedial order. If he wishes to make oral submissions, the Tribunal will hear those submissions by telephone hearing, unless the applicant provides reasons why it is necessary to hold an in person hearing;

e. If the applicant advises that he does not have additional documents to submit, or that he does not wish to make oral submissions, the Tribunal will proceed to finally determine the Application, including deciding the appropriate remedy, based only on the materials before the Tribunal that have been filed by the applicant.