Marija Kotevski v. Wimpy’s Diner and Krste Petrevski, 2010 HRTO 1548

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marija Kotevski

Applicant

-and-

Wimpy’s Diner and Krste Petrevski

Respondents

Interim Decision

Adjudicator: Judith Keene

Date: July 16, 2010

Citation: 2010 HRTO 1548

Indexed as: Kotevski v. Wimpy’s Diner

1The 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 8, 2010. The Application alleges discrimination and harassment the grounds of sex, and reprisal. The respondent has failed to file a Response, notwithstanding having received notice of the Application. As a result, the Tribunal will proceed without the participation of the respondent.

Background

2On April 30, 2010 the Tribunal issued a Notice of Application to the respondents. The respondents were advised that a Response must be filed with the Tribunal not later than 35 days after April 30, 2010. As of the date of this Interim Decision the respondents have not filed a Response, nor has the Tribunal’s correspondence been returned. Because the respondent did not file a Response within 35 days as required by the Tribunal’s Rules, the Tribunal issued a “no response decision”, 2010 HRTO 1358. The decision gave the respondents a further opportunity to respond, and noted that, “if a Response is 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”.

3In Kearns v. 1327827 Ontario, 2009 HRTO 457, at paragraphs 11 – 14, 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:

11The Code is an important public statute which enshrines our most basic and fundamental rights and freedoms. The enforcement procedures in the Code are equally important, since without an effective means of claiming a violation of a right, and seeking redress where a violation is found, those fundamental human rights would have little meaning.

12The procedures established by the Tribunal’s Rules provide a mechanism to resolve disputes arising under the Code fairly and expeditiously. An individual who believes his or her rights have been infringed may bring an Application. That Application must be complete and set out the allegations which, in the applicant’s view, constitute a violation of the Code. Before serving an Application on the person or organization named as a respondent, the Tribunal will review the Application to ensure that it is complete and that it appears to be within the jurisdiction of the Code.

13Once served with an Application, if the respondent wishes to participate and defend against the claim made by the applicant, the respondent has only to file a Response. The Tribunal provides a respondent with clear notice of what is required, and has prepared a Guide which assists a respondent in completing its Response. The Response also provides a respondent with an opportunity to indicate which facts or allegations in the Application are agreed to, and which are disputed.

14A respondent who refuses, or chooses not to file a Response should not be able to frustrate the objects of the Code, and the applicant’s right to assert a claim and seek a timely determination of that claim. Section 40 of the Code requires the Tribunal to dispose of Applications in a way which will provide for “a fair, just and expeditious resolution of the merits of the application.” Where no Response is filed, in order to fulfill this statutory mandate, the Tribunal will proceed to determine the Application in the absence of the respondent. 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).

4The Tribunal went on to explain that, for several reasons, it will not generally make an order under Rule 5.5(d), without first providing the applicant an opportunity to indicate whether he or she wishes to file further materials and make oral submissions.

5I am satisfied the respondent has received notice of the Application, as well as the above-noted Interim Decision. The respondent refuses, or has chosen not to participate in these proceedings.

6For 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) Within 3 weeks of this Interim Decision the applicant may submit any additional document she wishes the Tribunal to consider in deciding this Application.

d) At the same time, the applicant shall indicate whether she wishes to make oral submissions before the Tribunal finally disposes of this Application and issues a remedial order. If she wishes to make oral submissions, the Tribunal will hear those submissions by telephone hearing, unless the applicant provides reasons why it is necessary to hold an in person hearing; and

e) If the applicant advises that she does not have additional documents 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.