Kearns v. 1327827 Ontario, 2009 HRTO 502

Human Rights Tribunal of Ontario

Between:

John Kearns Applicant

-and-

1327827 Ontario Limited and Anthony Motuzas Respondents

Interim Decision

Adjudicator: Michael Gottheil Date: April 27, 2009 Citation: 2009 HRTO 502 Indexed as: Kearns v. 1327827 Ontario

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.

2On April 17, 2009, the Tribunal issued an Interim Decision, 2009 HRTO 457, (the "April 2009 decision") finding that the respondents were deemed to have accepted all the facts alleged in the Application, and were deemed to have waived their right to participate in the proceedings before the Tribunal. The Tribunal took these extraordinary steps, pursuant to Rule 5.5, because the respondents had failed to file their Response, notwithstanding they had been directed to do so in two earlier Interim Decisions (2008 HRTO 354 and 2009 HRTO 369 the latter granting a request for an extension of time to file the Response). As a result, the Tribunal set a timetable for the applicant to provide further documents and submissions, and to advise whether he wished to make oral submissions before the Tribunal finally determined the Application.

3On April 17, 2009, the Tribunal received a telephone message, and on April 20, 2009, an email correspondence from counsel retained by the respondents. Counsel indicated that he had been retained on April 17, 2009, and asked for an extension to file a Response. The April 20, 2009 email does not appear to have been copied to the applicant, as required by the Tribunal's Rules.

4In the circumstances, and in view of the April 2009 decision, the Tribunal is not prepared at this point to determine whether any material filed by the respondents will be considered, or whether they will be permitted to participate in these proceedings. Should the respondents wish to participate, they must, no later than May 1, 2009, deliver to the applicant's counsel, and file with the Tribunal:

a. A complete Form 2; and

b. Full submissions setting out their position on the extent of their right to participate in these proceedings. The submissions must include an explanation as to why they failed to file their Response earlier, as required by the Rules and as directed by the Tribunal, any facts upon which they rely, and legal argument in support of their proposed right to participate.

c. In making their submissions as set out in paragraph (b), the respondents should explain why, given the contents of Mr. Motuzas' letter of January 19, 2009 indicating that the respondents would be in a position to address the Application in February 2009, they nonetheless failed to file a Response.

5The April 2009 decision directed that the applicant file any additional materials he wished the Tribunal to consider by May 8, 2009, and to advise whether he sought to make oral submissions. In view of the above, that direction will be held in abeyance. The applicant is directed to deliver to the respondents, and file with the Tribunal, no later than May 15, 2009, response submissions to the submissions provided by the respondents as set out above. The respondents will have until May 23, 2009 to deliver and file any reply.

6The Tribunal may determine the right of the respondents to participate in these proceedings based only on the written submissions of the parties. If any party believes that the Tribunal should hear oral submissions on this issue, they should so indicate in their written submissions, and provide reasons why they believe oral submissions are necessary.