HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rosa Da Silva

Applicant

-and-

Art Leal

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: April 28, 2009

Citation: 2009 HRTO 522

Indexed as: Da Silva v. Leal

1On January 30, 2009, the applicant filed an Application under Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of record of offences.

2The applicant alleges that in July 2008, she and the respondent, whom she describes as her “boss,” became involved in a verbal altercation following her return from vacation. She alleges that the respondent was suspicious that the applicant had improperly taken two days sick leave immediately prior to her vacation and asked her to get a doctor’s note.

3The applicant states that she was in an emotional state following the meeting, and left work early that day. Her doctor subsequently saw her and suggested she take further time off from work because she continued to be nervous and upset.

4The applicant states she applied for and received sick leave from Employment Insurance. When these benefits ran out, she wanted to apply for LTD benefits through her employer. The applicant alleges that the respondent became abusive when she advised him that she would be continuing to stay off work, and refused to provide her with the LTD forms.

JURISDICTION

5Although the applicant selected “record of offences” as the ground on which she was discriminated against by the respondent, she does not appear to allege any facts that would support that selection. The term “record of offences” is defined in section 10(1) of the Code as follows:

“record of offences” means a conviction for,

(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked; or

(b) an offence in respect of any provincial enactment.

6Although the applicant does not select it, the facts alleged in her Application suggest that the ground of disability might be more applicable. “Disability” is defined in section 10 as including “a mental disorder.” It is not clear from the Application what the nature of her diagnosis was during this time.

7The applicant is directed to provide written submissions on whether the respondent’s alleged conduct constituted discrimination on the basis of “record of offences” or “disability” as those grounds are defined in the Code, and if so, why. The applicant’s submissions should be delivered to the respondent and filed with the Tribunal by May 8, 2009. The respondent may deliver to the applicant and file with Tribunal written submissions in response by May 15, 2009.

8Following receipt of the submissions, or if submissions are not provided by the date set, the Tribunal may consider whether the Application should be dismissed under Rule 13.1 of the Tribunal’s Rules of Procedure, which permits it to dismiss all or part of an application that is outside its jurisdiction.

9The applicant may wish to consult the Applicant’s Guide, available on the Tribunal’s website at www.hrto.ca or from the Registrar’s office. Pages 2-3 set out sources of assistance that may be available to him.

FAILURE TO RESPOND

10On February 26, 2009, the Tribunal sent the Application to the respondent by regular mail at the address provided by the applicant, together with a direction to respond no later than thirty five (35) days from that date, in accordance with the Tribunal Rules. Under Rule 1.22 of the Tribunal’s Rules of Procedure, a document delivered by mail is deemed received five days after the postmark date.

11It has now been more than three weeks since the Response was due. The Tribunal has not received a Response from the respondent, nor has its correspondence been returned.

12A Tribunal application is a legal proceeding, which, if a violation of the Code is found, may lead to various orders, including monetary compensation, other forms of restitution to the applicant, and orders to take action to promote compliance with the Code. Failure to file a Response or participate in a Tribunal proceeding may lead to orders against individual and corporate respondents without their participation. The respondent’s attention is drawn to Rule 5.5 of the Tribunal’s Rules of Procedure, which reads as follows:

5.5 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.

13The applicant has provided an address, phone number and fax number for the respondent. The Tribunal shall send a copy of this decision to the respondent by regular mail and courier.

14If the respondent wishes to participate in this proceeding, a Response must be filed by May 15, 2009 together with an explanation of why the Response was not filed earlier in accordance with the Tribunal Rules and the direction contained in the Notice sent February 26, 2009. If a Response is not received by this date, the Tribunal shall proceed without further notice to the respondent, and may take any or all of the other steps set out in Rule 5.5.

15I am not seized of this matter.