Alan Albino v. Tyco Electronic of Canada Ltd., 2009 HRTO 670

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alan Albino

Applicant

-and-

Tyco Electronic of Canada Ltd., George Goto, Keith Denlinger and Kerry Mills

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: May 22, 2009

Citation: 2009 HRTO 670

Indexed as: Albino v. Tyco Electronic of Canada

1This is an Application filed January 2, 2009 under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The purpose of this Interim Decision is to address the request of the personal respondent Kerry Mills to be released from further participation in these proceedings.

2The original complaint was filed with the Ontario Human Rights Commission on August 8, 2005. Kerry Mills was employed by the corporate respondent at the time and was named as a personal respondent. Since that time, she has left the employ of the corporate respondent and is not currently represented by them.

3The applicant originally delivered the Application to all the personal respondents at the premises of the corporate respondent. Counsel for the corporate respondent and personal respondents Goto and Denlinger acknowledged receipt of the Application but asserted that technically the personal respondents Goto and Denlinger had not been served with the Application.

4The Tribunal advised the parties that it was of the view that the corporate respondent and the personal respondents Goto and Denlinger have been properly served and have since filed their Response.

5Counsel for the corporate respondent and the personal respondents Goto and Denlinger advised that the personal respondent Mills was no longer employed by the corporate respondent and that she had not been served with a copy of the Application. Counsel also indicated that once the Application had been properly served on the respondent Mills, they would seek instructions from her.

6The Tribunal directed the corporate respondent to provide the last known contact information for the respondent Mills, which they did. The applicant was directed to deliver a copy of the Application to the respondent Mills.

7The applicant attempted to send the Application by courier to the respondent Mills, but she did not pick up the materials. The Tribunal wrote to the parties, including respondent Mills outlining the applicant’s failed attempt to deliver the Application and directed the applicant to send a copy of the Application to the respondent Mills by regular mail. The Tribunal’s letter specifically advised the respondent Mills that the Tribunal may deem her to have received the Application and directed her to file a Response.

8The applicant sent the Application by regular mail which was returned to him with the words “return to sender.” Material sent by the Tribunal to the same address has not been returned.

9Meanwhile, Ms. Mills contacted the Tribunal to advise that she had left the employ of the corporate respondent and was too ill to participate in these proceedings. She also objected to the provision of her contact information to the applicant and asserts that the applicant’s attempts to contact her and communicate with her amount to harassment. Ms. Mills provided a brief medical note but specifically directed the Tribunal not to share its contents with the other parties.

10A 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. Ms. Mill’s attention is drawn to Rule 3.2 of the Tribunal’s Rules of Procedure for applications under Section 53(3) of the Human Rights Code, which reads as follows:

3.2 Where an Application (Form A) 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, including the allegations set out in the complaint;

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.

11In the circumstances, the Tribunal makes the following orders and directions.

12A copy of the Application will be sent, together with this Interim Decision, to the personal respondent Mills by regular mail and she will be deemed to have received the Application five days after mailing. In all the circumstances, I find it appropriate to abridge the time for filing the Response. Ms. Mills is directed to file her Response using Form TR-2 within 20 days of receipt of this Interim Decision.

13The respondents’ counsel is directed to advise the Tribunal and the parties, within ten days of the date of this Interim Decision, whether they represent Ms. Mills and, if so, they should file a Response on her behalf in accordance with the time limit set out above.

14In any event, if Ms. Mills wishes to be removed as a respondent in these proceedings, she may, after she files her Response, make a Request for an Order During Proceedings (Form TR-4) setting out the reasons for the Request. If she intends to rely upon any medical report in support of such a Request she must provide this material to the applicant and the other parties as well as the Tribunal.

15Until and unless the Tribunal makes an order removing her as a party to this Application, Kerry Mills is a named respondent to this proceeding and is expected to comply with all Tribunal Rules and directions.

16In the meantime, the Tribunal will proceed to schedule a date for mediation in this matter.