Taranco v. Michedes, 2009 HRTO 67

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Taranco

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Peter Michedes a.k.a. Panayitis Michaelides

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: January 20, 2009

Citation: 2009 HRTO 67

Indexed as: Taranco v. Michedes

1This Interim Decision deals with a request by the Ontario Human Rights Commission (the “Commission”) for a written hearing of this complaint, which alleges discrimination on the basis of age and sex in respect of accommodation.

2For the reasons set out below, I find that sufficient notice of this proceeding and of the request to proceed by way of written hearing in this matter have been given to the respondent, who has not participated in the Tribunal’s process nor indicated any intention to participate. Accordingly, the request is granted and this decision serves as a Notice of Written Hearing.

BACKGROUND

3On June 10, 2008, the Commission referred this complaint to the Tribunal pursuant to section 36(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

4Following the referral, and in accordance with its usual procedure, the Tribunal sent Notice of an Initial Conference Call to the parties, including the respondent, at the addresses provided to the Tribunal by the Commission, with the Commission’s assurance that it had taken reasonable steps to confirm the addresses provided for the parties were current and accurate. The Initial Conference Call was held and the respondent did not attend the call. During the call, certain dates for the delivery of hearing briefs were set and a Pre-Hearing Conference Call was scheduled for October 27, 2008.

5On October 8, 2008, the Commission advised the Tribunal that it had not been able to effect personal service of its hearing brief on the respondent at the address on file. It further indicated that someone from the Commission’s office had had a telephone conversation with the respondent and obtained a different mailing address for him (“the new address”). The Commission indicated that it had sent notice of the Pre-Hearing Conference Call scheduled for October 27, 2008 to the respondent at the new address provided.

6Based on this information, on October 22, 2008, the Tribunal wrote to the respondent at the new address which had been provided, enclosing copies of all of the correspondence in the file, and drawing the respondent’s attention to the Pre-Hearing Conference Call on October 27, 2008. The Tribunal advised the respondent that he was “required to attend this call”. Its October 22, 2008 letter also indicated that if the respondent did not participate in this proceeding, decisions affecting him, including possible orders that he pay monetary damages to the complainant and other remedies could be made without his participation. The Tribunal’s package was successfully delivered via courier on October 24, 2008 to one “Michaelidas” at the new address for the respondent supplied by the Commission and a signature from the recipient “Michaelidas” was obtained.

7The Pre-Hearing Conference Call proceeded as scheduled on October 27, 2008 and the respondent did not attend the call. During the call, the Commission made a verbal request to proceed by way of written hearing in this matter, later confirmed in writing. In connection with the request, the Tribunal directed the Commission to provide affidavit evidence establishing that the respondent had received notice of the proceeding and notice of the Commission’s request for a written hearing.

8On November 7, 2008, the Commission filed an affidavit purporting to establish that it had given the respondent notice of the proceeding and of the request for a written hearing. However, the supporting affidavit attested only to the fact that notice had been sent by regular mail to the new address the Commission had allegedly obtained for the respondent. It did not attest to the source of the Commission’s belief that the street address in question was a valid address for the respondent.

9On November 27, 2008, the Tribunal issued an Interim Decision in this matter, 2008 HRTO 324, directing the Commission to ensure that proper notice had been given to the respondent of the proceeding and of the request for a written hearing and to provide further affidavit evidence to the Tribunal attesting that such notice had been given.

10On December 4, 2008, the Commission filed an affidavit which establishes that a legal assistant with the Commission personally served the Commission’s hearing brief in this matter and written notice of its request to proceed by way of written hearing in this matter on the respondent on December 3, 2008 at the new address for the respondent (i.e. the same address to which the Tribunal couriered its October 22, 2008 package).

DECISION

11The Tribunal held in Sanford v. Koop, 2005 HRTO 28, at para. 21, that in most cases in which a respondent chooses not to participate, a written hearing is appropriate if one is requested. In Lestage v. Rénozone Express Inc., 2006 HRTO 24 and Szabo v. Casa Industries, 2007 HRTO 21, the Tribunal held that it is necessary to ensure that effective notice of the proceeding and the request for a written hearing is given to any respondent prior to a notice of written hearing being issued.

12In all of the circumstances, the Tribunal is confident that the respondent has been given adequate notice of the proceeding and of the request for a written hearing. The Tribunal couriered Notice of the proceeding to the respondent at the new address provided by the Commission. The Tribunal’s package was successfully delivered to one “Michaelidas” at the new address and a signature confirming delivery was obtained. Further, the Commission personally served the respondent with notice of its request for a written hearing and a copy of the Commission’s hearing brief.

13The respondent has not contacted the Tribunal with respect to this matter at all. He has chosen not to participate in this proceeding.

14Accordingly, it is appropriate to hold a written hearing to determine whether the respondent is liable for a violation of the complainant’s rights under the Code and the appropriate remedy if a violation is found.

ORDER

8The Tribunal therefore makes the following order:

a) The Tribunal will, subject to paragraphs b, c and d below, conduct a written hearing to determine the merits of the complaint.

b) If the respondent objects to proceeding by way of written hearing, he shall, by no later than January 30, 2009, file with the Tribunal and serve on the other parties, submissions as to why there is good reason not to conduct the proceedings by way of written hearing. The respondent should at the same time include submissions as to the appropriate procedures to be followed if, notwithstanding his objection, the Tribunal determines that it is appropriate to hold a written hearing. Alternatively, if the respondent does not object to proceeding by way of written hearing, but wishes to participate in the written hearing, he should advise the Tribunal of his desire to make submissions and/or present evidence in the written hearing by January 30, 2009.

c) If the respondent files submissions as set out above, the Commission and the complainant shall have five days to file and serve their replies.

d) Should the respondent object to a written hearing on the merits, the Tribunal will issue a decision setting out whether the case will proceed by written or oral hearing.

e) Should the respondent fail to provide submissions as set out in paragraph b above or advise the Tribunal of his desire to make submissions and/or present evidence in the written hearing by January 30, 2009, the Tribunal will proceed without his participation and he will not be entitled to any further notice of these proceedings in accordance with section 6(4)(c) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended.

f) Should the respondent fail to provide submissions as set out in paragraph c above, the Commission and the complainant shall, no later than February 13, 2009 serve and file all evidence (in affidavit form), documents, submissions and argument which they ask the Tribunal to consider in making a decision on the merits of the complaint and with respect to the appropriate remedy. In this regard, the Commission’s attention is drawn to the Tribunal’s decision in Sanford, supra, about the requirement for evidence in the written hearing context.

g) This Interim Decision shall serve as a Notice of Written Hearing.

h) The Commission is directed to personally serve the respondent with this Interim Decision within seven (7) days of the date of this decision. If thereafter the respondent wishes to participate in this proceeding, and in addition to the orders given above, the respondent is directed to provide the Tribunal in writing with his current contact information within five (5) days of being served with this Interim Decision.