Samoila v. Laviolett, 2010 HRTO 136

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mihai Samoila

Applicant

-and-

Clifford Laviolett

Respondent

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: January 21, 2010

Citation: 2010 HRTO 136

Indexed as: Samoila v. Laviolett

1This is an Application under s. 34 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 respondent’s continued failure to file a Response to the Application.

2The Tribunal issued a previous Interim Decision, 2009 HRTO 2202, noting the respondent’s failure to file a Response and directing him to do so by December 28, 2009, together with an explanation for why he had not filed the Response in accordance with the Tribunal’s Rules. The Tribunal specifically drew the respondent’s attention to Rule 5.5 of the Tribunal’s Rules, which reads as follows:

Where an Application 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;

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 may take any of the other steps in Rule 5.5.

3The Tribunal sent its Notice of Confirmation of Receipt of an Application and its Interim Decision dated December 17, 2009 to the respondent by regular mail and courier. It was not returned as undeliverable. To date, no Response has been received from the respondent.

4In a similar case, Kearns v. 1327827 Ontario, 2009 HRTO 457 at para. 14, where the respondent failed to file a Response despite having received a Notice of 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

7Unless the applicant wishes to waive his right to make oral submissions, the most fair, just and expeditious way to deal with this Application is to schedule a hearing. At the hearing, the applicant need not present evidence on the facts already set out in his Application. Since I have found that the respondent is deemed to have accepted the facts and allegations set out in the Application, I am prepared to treat those facts as uncontradicted evidence. It is worth noting that accepting the facts as true does not mean that a finding of discrimination has been made. The applicant will still be expected to establish at the hearing that the facts he has pleaded demonstrate a breach of the Code.

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

b. The respondent is 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 will schedule a one-day hearing.

10I am not seized of this matter.