John Tewogbade v. Toronto Police Services Board, Mike Earl and William Blair, 2009 HRTO 875

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Tewogbade

Applicant

-and-

Toronto Police Services Board, Mike Earl and William Blair

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: June 18, 2009

Citation: 2009 HRTO 875

Indexed as: Tewogbade v. Toronto Police Services Board

1This is an Application filed January 7, 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”).

2In an earlier Interim Decision, 2009 HRTO 465, the Tribunal deferred the determination of the applicant’s Request that the Application be granted as the respondents had not filed a Response. The Tribunal stated that if mediation did not resolve the dispute, the applicant could then renew his Request.

3By letter dated June 12, 2009, applicant’s counsel noted that the respondents have refused mediation, and re-raises his Request. This Interim Decision addresses the applicant’s Request.

4The Application was served by facsimile transmission on January 7, 2009. In accordance with the Tribunal’s Rules, the Response should have been filed within 35 days, or by February 11, 2009. When no Response had been delivered by April 11, 2009, the applicant’s counsel wrote to the Tribunal asking for an order that the Application be granted.

5On April 14, 2009, current counsel for the respondents stated that she had only received the Tribunal’s confirmation of receipt of an application on March 23, 2009 and noted that the time for filing the Response already had passed by the time the confirmation was sent out. The respondents sought an extension of time to file their Response to April 20, 2009 and expressed that there was no prejudice to the applicant. On April 14, 2009, applicant’s counsel wrote to oppose the extension Request.

6On April 16, 2009, the Registrar-Transition granted the respondents’ extension Request. That same day, applicant’s counsel objected to the jurisdiction of the Registrar-Transition to grant the extension. The respondents filed their Response on April 17, 2009.

7Rule 3.2 of the Tribunal’s Rules of Procedure for Transitional Applications (“Transition Rules”) set out certain steps that the Tribunal may take if a respondent fails to respond to an application, which include deeming the respondent to have accepted all allegations in the application and underlying complaint and deciding the matter based only on the material before it. Rule 3.3 provides that, where a party fails to deliver material as required by the Rules, the Tribunal may refuse to consider the material or take any other action it considers appropriate. Both of these Rules vest discretion in the Tribunal in relation to any failure to file a response in strict accordance with the 35 day time requirement set out in Rule 13.1.

8In addition, Rule 3.6 affords the Tribunal with the power to relieve against a failure to comply with the Rules where to do so would be fair and just and would not substantially prejudice a party or unduly delay the proceeding.

9In the circumstances of this case, there was a change in counsel for the respondents and receipt of the Tribunal’s confirmation that the Application had been received after expiry of the 35 day time requirement. Following receipt of the Tribunal’s confirmation, the respondents acted with reasonable diligence in filing their Response. No substantial prejudice has been shown by the applicant.

10Accordingly, the Tribunal exercises its discretion under Rule 3.6 to relieve against the respondents’ failure to file their Response within the 35 day time requirement and accepts the Response as filed.

11The Tribunal also acknowledges the respondents’ request that William Blair be removed as a personal respondent to this Application. The determination of this issue will be made at the hearing in this matter. In advance of the hearing, all parties will file written submissions in relation to this issue, including any evidence, argument and case law, in accordance with the following schedule:

a. Within 21 days of the date of this Interim Decision, the respondents shall serve and file their submissions;

b. Within 14 days of receipt of the respondents’ submissions, the applicant shall serve and file his submissions; and

c. Within seven days of receipt of the applicant’s submissions, the respondents shall serve and file any submissions in reply.

12I am not seized.