Amanda Bickell v. The Country Grill, 2010 HRTO 1408

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amanda Bickell

Applicant

• and-

The Country Grill

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: June 23, 2010

Citation: 2010 HRTO 1408

Indexed as: Bickell v. Country Grill

BACKGROUND

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 8, 2009, alleging discrimination in employment because of sex (pregnancy).

2On January 26, 2010, the Tribunal issued a Notice of Application to the respondent. The respondent was advised that a Response must be filed with the Tribunal not later than 35 days after January 26, 2010. No Response was received and there has been no communication from the respondent regarding the Application.

3Consequently, the Tribunal issued Interim Decision 2010 HRTO 1041, wherein the Tribunal noted the failure of the respondent to file a Response and provided the respondent until May 13, 2010, to file a Response together with an explanation of why the Response was not filed in accordance with the original Notice of Application. The Interim Decision further stated that if the Response was not received, the Tribunal might proceed without further notice to the respondent and it might take any or all of the steps set out in Rule 5.5 of the Tribunal’s Rules of Procedure. Pursuant to the order set out in that Interim Decision, a copy of that Interim Decision was sent to the respondent by regular mail and courier.

DECISION

4Rule 5.5 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.

5Neither the Notice of Application, nor the Interim Decision, have been returned to the Tribunal as undeliverable. The applicant has confirmed that the correct address has been provided for the respondent.

6In 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 the respondent has received notice, the Tribunal will proceed to determine the Application in the absence of the respondent.

7It has now been more than one month since the Response and accompanying explanation for the delay were due. No Response has been received from the respondent, despite having received notice of the Application and an Interim Decision regarding this matter. I am satisfied that the respondent has received notice of the Application and notice of the Tribunal’s Order directing it to file a Response. It appears that the respondent refuses, or has chosen not to participate in these proceedings, notwithstanding notice of the implications of Rule 5.5. In the circumstances, the Tribunal orders that the respondent is deemed to have waived all rights with respect to further notice or participation in the proceeding.

8The Tribunal will proceed without the participation of the respondent and deems the respondent to have waived its right to participate pursuant to Rule 5.5(c) and further deems the respondent to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a). Before the Tribunal finally determines the Application, the applicant will be provided an opportunity file any documents or materials she may wish the Tribunal to consider and to make oral submissions via teleconference.

9As such, the following is ordered:

• The respondent is deemed to have waived all rights to notice or participation in these proceedings and is further deemed to have accepted all of the allegations set out in the Application;

• Within four weeks of this Interim Decision, the applicant may submit any additional documents or materials she wishes the Tribunal to consider in deciding this Application, and the applicant should advise the Tribunal whether or not she wishes to make oral submissions via teleconference call before the Tribunal finally determines the Application; and

• If the applicant advises that she does not have documentary materials to submit, or 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.

10I am not seized of this matter.