HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Alexandru Dorohoi
Applicant
-and-
Teletech Canada Inc.
Respondent
Interim Decision
Adjudicator: Michael Gottheil
Indexed as: Dorohoi v. Teletech
Introduction
1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the grounds of race, colour, place of origin, citizenship, ethnic origin and reprisal. The respondent has failed to file a Response, notwithstanding having received notice of the Application, and having been granted extensions on two occasions. As a result, the Tribunal will proceed without the participation of the respondent.
Background
2The Application was filed on September 18, 2008 and sent to the respondent on September 25, 2008. Because the respondent did not file a Response within 35 days as required by the Tribunal’s Rules, the Tribunal issued a “no response decision” 2008 HRTO 357. The respondent sent correspondence to the Tribunal on December 9, 2008 seeking an extension to file a Response. On December 18, 2008 the respondent sent further correspondence in which it denied the allegations in the Application and asserted the applicant was terminated for reasons of poor performance. The respondent did not, however, file a Response as required by the Rules. By Interim Decision 2008 HRTO 413, the Tribunal directed the respondent to file a complete and proper Response by December 23, 2008.
3The respondent did not file a Response as directed in the December 19, 2008 decision.
4Following correspondence from counsel for the applicant, on April 7, 2009 the Tribunal issued a Case Assessment Direction directing the respondent that, if it intended to participate in these proceeding, it must file its Response no later than April 17, 2009. The Tribunal further cautioned that if the respondent failed to file its Response as directed, the Tribunal would make an order pursuant to paragraphs a, b and c of Rule 5.5 of the Tribunal’s Rules.
5Counsel for the applicant advised in correspondence dated April 22, 2009 that counsel for the respondent had contacted her to seek consent to an extension to file a Response. Counsel for the applicant indicated that she did not consent, noted that the respondent had again missed a deadline set by the Tribunal to file its Response, and requested that the Tribunal proceed to determine the Application without further notice to the respondent. The respondent has not filed a Response.
Decision
6In Kearns v. 1327827 Ontario, 2009 HRTO 457, at paragraphs 11 – 14, the Tribunal set out its approach in circumstances where a respondent fails to file a Response after having been cautioned, and the rationale for that approach:
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).
7The Tribunal went on to explain that, for several reasons, it will not generally make an order under Rule 5.5(d), without first providing the applicant an opportunity to indicate whether he or she wishes to file further materials and make oral submissions.
8I am satisfied the respondent has received notice of the Application and the several decisions of the Tribunal directing it to file its Response. The respondent refuses, or has chosen not to participate in these proceedings.
9For the reasons set out above, I make the following order:
o The respondent is deemed to have accepted all of the allegations set out in the Application;
o The respondent is deemed to have waived all rights to notice or participation in these proceedings; and
o Within 3 weeks of this decision the applicant may submit any additional document he wishes the Tribunal to consider in deciding this Application.
10In her April 22, 2009 letter, counsel for the applicant indicated that the applicant did wish to make oral submissions, and was content to do so by way of teleconfrence as proposed in the Case Assessment Direction. In the circumstances the Tribunal will hold a teleconference hearing on June 23, 2009 commencing at 9:30 am. The in person hearing scheduled for June 23 and 24, 2009 in North Bay is hereby cancelled.
Dated at Toronto, this 11^th^ day of May, 2009.
“Signed by”________________________
Michael Gottheil
Chair