Bahen v. Catering 101, 2009 HRTO 829

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carolyn Bahen

Applicant

-and-

Catering 101 and Kevin Knicely

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: June 11, 2009

Citation: 2009 HRTO 829

Indexed as: Bahen v. Catering 101

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), on October 8, 2008. On October 16, 2008, the Tribunal issued a Notice of Application and delivered the Application to the respondents by regular mail at the address provided by the applicant. The Notice directed the respondents to file a Response with the Tribunal no later than thirty-five (35) days from the date of the Notice.

2On December 3, 2008, the Tribunal issued an Interim Decision, 2008 HRTO 346, as more than ten days after the date for filing the Response had passed and the respondents had not filed a Response. On the same day, the Notices of Application sent to the respondents were returned to the Tribunal. On December 12, 2008, the Interim Decision sent to the respondents by courier was also returned to the Tribunal.

3Tribunal staff confirmed with the individual respondent, Kevin Knicely, that the address provided in the Application was an old address and he did not, therefore, receive a copy of the Interim Decision. Mr. Knicely provided a new address for the respondents. The Interim Decision was not re-sent to the respondents.

4On December 17, 2008, the Tribunal re-issued a Notice of Application and delivered it to the respondents by regular mail at the new address provided by Mr. Knicely. The Notice directed the respondents to file a Response with the Tribunal no later than thirty-five (35) days from the date of the re-issued Notice.

5On March 2, 2009, the Tribunal issued a second Interim Decision, 2009 HRTO 223, as more than ten days after the date for filing the Response had passed, the respondents had not filed a Response, and the Tribunal’s re-issued Notice had not been returned. The second 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 seven days from the date 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 respondents, and may take any or all of the other steps set out in Rule 5.5.

6To date, the respondents have not filed a Response. The Interim Decision was sent to the respondents by regular mail and courier at the new address provided to the Tribunal by Mr. Knicely. The Interim Decision sent by courier was returned to the Tribunal indicating that delivery was attempted after which it was available for pick up but was unclaimed.

7In 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 that 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).

8It has now been more than ninety days since the respondents’ Response and accompanying explanation for the delay were due. The respondents have again failed to file a Response, despite having received notice of the Application and an Interim Decision regarding this matter. I am satisfied that the respondents have received notice of the Application and notice of the Tribunal’s Order directing them to file a Response. It appears that the respondents refuse, or have 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 respondents and will 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.

9The applicant will be provided with an opportunity to file any documents or materials, including written submissions, she may wish the Tribunal to consider. In addition, the applicant will be provided with an opportunity to make oral submissions before the Tribunal finally determines the Application, unless this right is waived. An in person hearing is currently scheduled for July 2, 2009, in Toronto.

10In the circumstances, the Tribunal makes the following Order:

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

• The respondents are deemed to have waived all rights to notice or participation in these proceedings;

• Within 2 weeks of the date of this Interim Decision, the applicant should advise the Tribunal whether she wishes to make oral submissions before the Tribunal finally determines the Application and, if so, whether or not she is content to do so by way of a teleconference call on July 2, 2009, as opposed to attending an in person hearing;

• Within 2 weeks of the date of this Interim Decision, the applicant may also submit any additional documents or materials, including written submissions, she wishes the Tribunal to consider in deciding this Application; and

• If the applicant does not submit additional documents or materials or advises that she 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.

11I am not seized of this matter.