Hill-LeClair v. Booth, 2009 HRTO 536

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christine Hill-LeClair

Applicant

-and-

Joseph Booth

Respondent

INTERIM decision

Adjudicator: Mary Truemner

Date: April 29, 2009

Citation: 2009 HRTO 536

Indexed as: Hill-LeClair v. Booth

INTRODUCTION

1This is an Application filed on December 31, 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 because of sex, sexual harassment and sexual solicitation in housing. The Tribunal has issued a previous Interim Decision, 2009 HRTO 349, (the March decision), noting the lateness of the Response to the Application, and directing the respondent to file it. To date, the respondent has not filed a Response. This Interim Decision provides case assessment directions to the applicant in order that the Tribunal may deal with the Application in a fair, just and expeditious manner.

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

2On March 6, 2009, the respondent contacted the Tribunal to state that he had received the Notice of Application from a friend, but was currently serving in the military in New Brunswick, and was unable to access a computer to print a Response Form in order to complete and file it. The Tribunal agreed to fax to the respondent a copy of the Response Form, and did so on March 6, 2009, using the fax number provided by the respondent that day. The respondent agreed to complete and return the Response by March 9, 2009. He failed to do so.

3In the Tribunal’s March decision which followed, the Tribunal noted that still no Response had been filed, and directed the respondent to file his Response no later than April 8, 2009. The March decision cautioned that failure to file a Response could result in the Tribunal taking steps under Rule 5.5. These steps, which the Tribunal drew to the respondent’s attention in the March decision, are 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.

4The March decision was mailed to the address in New Brunswick which the responded provided to the Tribunal. To date, the Tribunal has not received anything further from the respondent.

5In a similar case, Kearns v. 1327827 Ontario., 2009 HRTO 457, where the respondent failed to file a Response despite having received the Notice of Application, and despite an interim “no response” decision having been issued, the Tribunal noted:

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).

6With reference to the principles articulated in Kearns v. 1327827 Ontario., 2009 HRTO 457, and in Burns v. Employer’s Choice Staffing of Canada, 2008 HRTO 363, I find that it is appropriate in this case to deem the respondent to have accepted all of the facts alleged in the Application, and to have waived any right to participate in these proceedings.

7I will defer making a final ruling on the Application until after the applicant has had the opportunity to provide additional materials and to make oral submissions.

DIRECTIONS

8In my view, the most fair, just and expeditious way to deal with this Application is to schedule a hearing. At the hearing, the applicant need not present evidence on the facts already set out in her Application. Since I have found that 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.

9In addition to any other issues the applicant may choose to address, the applicant should be prepared to address section 21 of the Code which exempts owners of shared accommodation from complying with section 2 of the Code.

10For the reasons set out above, I make the following order:

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

b. The respondent is deemed to have waived all rights to notice or participation in these proceedings; and

c. No later than two weeks before the date set for the hearing, the applicant may submit any additional document she wishes the Tribunal to consider in deciding this Application.

d. The Registrar will schedule a half-day hearing in this matter.

11I am not seized.