HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
John Kearns
Applicant
-and-
1327827 Ontario Limited and Anthony Motuzas
Respondents
INTERIM DECISION
Adjudicator: Michael Gottheil
Indexed as: Kearns v. 1327827 Ontario
1This Interim Decision is further to Interim Decisions 2009 HRTO 457 (the "April 17 decision") and 2009 HRTO 502 (the "April 27 decision"). In the April 17 decision, as a result of the respondents' failure to file a Response in accordance with the Rules and Tribunal directions, the respondents were deemed to have accepted all of the allegations set out in the Application, and to have waived their rights to participate in these proceedings.
2Following receipt of correspondence from counsel who had been retained by the respondents, in the April 27 decision the Tribunal directed the respondents to file a full Response, along with submissions in support of their request that they be entitled to participate in the proceedings. The applicant was provided an opportunity to respond to any submissions filed by the respondents.
3The respondents did file a full Response, and submissions setting out facts and argument why, in the circumstances, the Tribunal should consider their Response and allow them to participate. The applicant filed a Reply to the Response, but takes no position on whether the respondents should be permitted to participate.
4Counsel for the respondents set out in detail the circumstances surrounding the respondents' failure to respond to the Application after it had been served, and why the respondents had also failed to comply with the subsequent directions of the Tribunal to file a Response. The respondents explain that the president of the corporate respondent, Mr. Barry Walsh, became seriously ill in the fall of 2008. Barry Walsh was the principal operating officer and was in charge of day-to-day operations. Because of his illness, he was unable to attend to business affairs, including responding to the Application. Mr. Walsh subsequently passed away in January 2009.
5The respondents state that after Mr. Walsh passed away, there continued to be difficulties in re-establishing proper and efficient administration of the corporate respondent. In part this was due to the seasonal nature of the business, in part because Paul and John Walsh, the brothers of Barry, could not agree on a number of operational issues. The respondents submit that it was not until early April, when a Human Resource manager was hired, that the Tribunal's "no response" decision of April 17, 2009 was discovered and attended to. At that point, counsel was retained and immediately contacted the Tribunal.
6In the particular circumstances, I am prepared to accept the respondents' submissions that the Response be accepted and they be permitted to fully participate in these proceedings. I find the explanation of the failure to comply with the Rules and directions credible and legitimate. Also, the applicant has not disputed the explanation, has not alleged prejudice, and does not oppose the respondents' participation.
7Finally, and importantly, the respondents have now provided a full, complete and substantive Response and appear prepared to fully comply with the Tribunal's Rules and procedures. The Response sets out detailed facts in response to the human rights claim, and advances a substantive defence. In my view, in all of the circumstances, it would unfair to deny the respondents the opportunity to respond to, and defend against. this Application.
8As a result, my orders set out in the April 17 decision (that the respondents are deemed to accept all the allegations in the Application, and that they are deemed to have waived their rights to participate) are reversed, and this Application will proceed in accordance with the Tribunal's Rules.
9I note that both parties have indicated a willingness to engage in mediation. This matter will be referred to the Registrar to set a date for mediation.
10I am not seized.
Dated at Toronto, this 15th day of June, 2009.
"signed by"
Michael Gottheil
Chair