Douglas Edwards v. Neoset Canada Inc., 2009 HRTO 726

Human Rights Tribunal of Ontario

B E T W E E N:

Douglas Edwards

Applicant

-and-

Neoset Canada Inc., Gregory Papas and Abdulla Omar

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: June 1, 2009

Citation: 2009 HRTO 726

Indexed as: Edwards v. Neoset Canada

1This is an Application filed October 2, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The purpose of this Interim Decision is to address the respondents' continued failure to file Responses to the Application.

2The Tribunal issued a previous Interim Decision, 2009 HRTO 173, noting the respondents' failure to file Responses and directing the respondents to do so by February 27, 2009, together with an explanation for why they had not filed the responses in accordance with the Tribunal's Rules. The Tribunal specifically drew the respondents' attention to Rule 3.2 of the Tribunal's Rules of Procedure for applications under Section 53(3) of the Human Rights Code (also Rule 3.2 of the Rules of Procedure for Transitional Applications under Sections 53(3) and 53(5) of the Human Rights Code, now in force), 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.

3The Tribunal sent its Notice of Confirmation of Receipt of an Application and its Interim Decision dated February 18, 2009 to the respondents at the Huddersfield Road address and this material has not been returned to the Tribunal. To-date, no Responses have been received from any of the respondents.

4In a similar case, Kearns v. 1327827 Ontario., 2009 HRTO 457, where the respondent failed to file a Response despite having received a Confirmation of Receipt of an 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).

5With 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 respondents to have accepted all of the facts alleged in the Application, and to have waived any right to participate in these proceedings.

6I will not determine the Application without offering the applicant the opportunity to provide additional materials and to make oral submissions.

DIRECTIONS

7In my view, unless the applicant wishes to waive the right to make oral submissions, the most fair, just and expeditious way to deal with this Application is to schedule a Case Resolution Conference (CRC). At the CRC, the applicant need not present evidence on the facts already set out in her Application. Since I have found that the respondents are deemed to have accepted the facts and allegations set out in the Application, I am prepared to treat those facts as uncontradicted evidence.

8In addition to any other issues the applicant may choose to address, the applicant should be prepared to present evidence regarding the requested remedies.

9For the reasons set out above, I make the following order:

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

b. The respondents are 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 he wishes the Tribunal to consider in deciding this Application.

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

10I am not seized.