Zvonimir Basic v. Wynn Family Properties, 2009 HRTO 672

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zvonimir Basic

Applicant

-and-

Wynn Family Properties

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: May 21, 2009

Citation: 2009 HRTO 672

Indexed as: Basic v. Wynn Family Properties

Background

1On January 16, 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 housing on the basis of disability.

2On February 25, 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’s Rules of Procedure.

3On April 15, 2009, the Tribunal issued an Interim Decision denying the applicant’s Request to Expedite. That Interim Decision was sent to the respondent by courier delivery.

4On April 23, 2009, the Tribunal issued a second Interim Decision regarding the respondent’s failure to file a Response to the Application. The second Interim Decision was also sent to the respondent by courier delivery and the courier tracking details confirm that the item was delivered and received at the respondent’s reception desk.

5The April 23^rd Interim Decision noted that, in the circumstances where a respondent has failed to respond to an Application and pursuant to Rule 5.5 of the Tribunal’s Rules, the Tribunal may deem the respondent to have accepted all of the allegations in the Application and proceed to deal with the Application without further notice to the respondent. The Tribunal ordered the respondent to file a Response within five days from the date of receipt of the Interim Decision together with an explanation of why the Response was not filed earlier in accordance with the Tribunal’s Rules. The Interim Decision indicated that if a Response was not received by this date, the Tribunal would proceed without further notice to the respondent, and may take any or all of the other steps set out in Rule 5.5.

DECISION

6In Kearns v. 1327827 Ontario, 2009 HRTO 457, 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. At paragraphs 11-14, the Tribunal noted that the enforcement procedures prescribed by the Code are important mechanisms available to the public for claiming and enforcing fundamental human rights. These enforcement procedures also provide a clear means for respondents to explain and defend against human rights allegations. Where no Response is filed and the Tribunal is satisfied the respondent has received notice, the Tribunal will proceed to determine the Application in the absence of the respondent. In such circumstances, 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).

7It has now been more than fifteen days since the Response and accompanying explanation for the delay were due. The respondent has again failed to file a Response, despite having received notice of the Application and two Interim Decisions regarding this matter. I am satisfied the respondent has received notice of the Application and notice of the Tribunal’s Order directing it to file its Response. It appears that the respondent refuses, or has chosen not to participate in these proceedings, notwithstanding notice of the implications of Rule 5.5. As a result, the Tribunal will proceed without the participation of the respondent and will 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.

8The applicant will be provided an opportunity to file any documents or materials he may wish the Tribunal to consider, and unless this right is waived, will be provided an opportunity to make oral submissions before the Tribunal finally determines the Application.

9As such, the following is ordered:

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

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

• Within 3 weeks of this Interim Decision, the applicant should advise the Tribunal whether he wishes to make oral submissions before the Tribunal finally determines the Application and, if so, whether or not he is content to do so by way of teleconference call;

• Within 4 weeks of this Interim Decision, the applicant may submit any additional documents or written submissions he wishes the Tribunal to consider in deciding this Application; and

• If the applicant advises that he does not have additional documentary materials to submit, or that he does not wish to make oral submissions, the Tribunal will proceed to finally determine the Application, including deciding the appropriate remedy, based only on the materials before the Tribunal that have been filed by the applicant.

10I am not seized of this matter.