Jon Wagner v. Russ Bishop, 2010 HRTO 152

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jon Wagner

Applicant

-and-

Russ Bishop

Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: January 25, 2010

Citation: 2010 HRTO 152

Indexed as: Wagner v. Bishop

1This Interim Decision deals with the respondent’s failure to provide a Response (Form 2) to this Application filed with the Human Rights Tribunal of Ontario (the “Tribunal”).

2The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on March 11, 2009. On March 19, 2009, 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 March 19, 2009.

3As of November 27, 2009, the respondent had not filed a Response, nor had the Tribunal’s correspondence been returned. The Tribunal therefore issued an Interim Decision, 2009 HRTO 2045, advising the respondent that the failure to file a Response or participate in a Tribunal proceeding may lead to orders against respondents without their participation. The respondent’s attention was drawn to Rule 5.5 of the Tribunal’s Rules of Procedure which reads as follows:

5.5 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.

4The respondent was advised that if he wished to participate in this proceeding, he was to file a Response within 10 days of the date of the Interim Decision, together with an explanation of why the Response was not filed in accordance with the Notice of Application. He was advised that if a Response was not received, the Tribunal may proceed without further notice to the respondent and may take any or all of the steps set out in Rule 5.5.

5On December 10, 2009, the Tribunal received correspondence, dated December 8, 2009, from counsel for the respondent attaching documents addressed to the Ministry of Labour in regard to what appears to be a claim pursuant to the Employment Standards Act, 2000, S.O. 2000, c.41 (the “ESA”). Included was the respondent’s communication with the Ministry of Labour dated August 17, 2009. Counsel for the respondent indicated that they have yet to receive a response to that communication, except for the Tribunal’s communication stating that an Interim Decision was made.

6It appears that there may be some misunderstanding that the Tribunal’s Interim Decision related to a claim pursuant to the ESA rather than an application made pursuant to the Code. In the circumstances, the respondent will be provided with an additional 10 days from the date of this Interim Decision to file a Response (Form 2) to the Application. If a Response is not received within 10 days of the date of this Interim Decision, the Tribunal may proceed without further notice to the respondent and may take any or all of the steps set out in Rule 5.5.

7Another copy of the Application and the Notice of Application will be forwarded to the respondent with this Interim Decision. The respondent may wish to consult the Tribunal’s website, www.hrto.ca, for information about the Tribunal and the Code.

8I am not seized of this matter.