HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chan Thai

Applicant

-and-

Hing Loong Investments Ltd. and China City Supermarket

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: September 8, 2010

Citation: 2010 HRTO 1838

Indexed as: Thai v. Hing Loong Investments

INTRODUCTION

1The purpose of this Interim Decision is to address the respondents’ ongoing failure to file a Response to the Application, and to provide directions to the applicant with respect to disposing of his Application.

BACKGROUND

2The applicant filed an Application on December 9, 2009 under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”), alleging discrimination in services on the basis of disability. The applicant alleges that he attended at China City Supermarket and, amongst other things, was denied entry because he uses a motorized scooter.

3The applicant initially named just Hing Loong Investments Ltd. as a respondent. On January 25, 2010, the Tribunal issued a Notice of Application and delivered the Application to the respondent by regular mail at the address provided by the applicant. The Notice directed the respondent to file a Response with the Tribunal no later than thirty-five (35) days from the date of the Notice. The Notice also provided the following warning:

If you fail to respond to the Application, the Tribunal may deem you to have accepted all of the allegations in the Application, proceed to deal with the Application without further notice to you, deem you to have waived all rights with respect to further notice or participation in the proceeding and decide the matter based only on the material before the Tribunal.

4The respondent Hing Loong Investments Ltd. did not file a Response. Accordingly, the Tribunal issued an Interim Decision, 2010 HRTO 549 (the “March Interim Decision”), dated March 12, 2010, and delivered it to the respondent by regular mail and courier. The Interim Decision had the following warning:

An application to the Tribunal starts a legal proceeding. A finding that a violation of the Code has occurred may lead to various orders, including monetary compensation, other forms of restitution to the applicant, and orders to take action to promote compliance with the Code. Failure to file a response or participate in a Tribunal proceeding may lead to orders against individual and corporate respondents without their participation. The respondent’s attention is drawn to Rule 5.5 of the Tribunal’s Rules 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.

If the respondent wishes to participate in this proceeding, it shall file a Response within 10 days of the date of this Interim Decision, together with an explanation of why the Response was not filed in accordance with the Notice of Application. If a Response is not received, the Tribunal may proceed without further notice to the respondents [sic] and may take any or all of the steps set out in Rule 5.5.

5The Tribunal sent the Interim Decision to the respondent Hing Loong Investments Ltd. by courier, but it was returned with the explanation that “appointment required”. The respondent Hing Loong Investments Ltd. has not filed a Response.

6A Case Assessment Direction (“CAD”) dated April 1, 2010 was issued by the Tribunal. In the CAD, the applicant was directed to provide written submissions setting out the basis for naming Hing Loong Investments Ltd. as a respondent since his allegations were against China City Supermarket, explaining how Hing Loong Investments Ltd. was alleged to have violated the Code, and describing the relationship between Hing Loong Investments Ltd and China City Supermarket. The CAD was sent to Hing Loong Investments Ltd. by courier and regular mail. The courier returned the CAD without an explanation. The copy of the CAD sent by regular mail was not returned. The respondent Hing Loong Investments Ltd. still has not filed a Response.

7On April 15, 2010, the applicant filed a Request for Order During Proceedings (“RFOP”) seeking to add another party, China City Supermarket, as a respondent and an order requiring the respondents to provide information about the owner of China City Supermarket. The respondent Hing Loong Investments Ltd. still had not filed a Response or otherwise communicated with the Tribunal.

8In the RFOP, the applicant submitted that he named the respondent Hing Loong Investments Ltd. as a respondent, instead of China City Supermarket, because a corporate search failed to disclose any information about the store. He believed that there is a reasonable possibility that the owner of the store is the same individual as the owner of the building in which the store is located. A title search was conducted on the property and it was determined that the owner of the building is Hing Loong Investments Ltd., which was then named as a respondent. The applicant requested that China City Supermarket be added as a respondent.

9A subsequent Interim Decision dated June 2, 2010, 2010 HRTO 1256 (the “June Interim Decision”), adding China City Supermarket, was sent to the parties. The respondent China City Supermarket was provided with copies of the March Interim Decision and the CAD and was directed to file a Response. This information was sent out to China City Supermarket by courier and regular mail. The information sent by regular mail was returned to the Tribunal with a handwritten notation “Return to Send”. A letter dated June 4, 2010 on China City Supermarket letterhead was also sent to the Tribunal stating “We think we don’t have any relationship with this matter”.

10The information was also sent to Hing Loong Investments Ltd. by courier and regular mail. Both were returned. The couriered package was returned because it did not appear that Hing Loong Investments Ltd. picked it up. The regular mail package was returned with a handwritten note “Return” on it. The handwriting appears to be the same as the handwriting on China City Supermarket’s returned regular mail package.

11The Tribunal sent correspondence dated June 15, 2010 to China City Supermarket called Return of Notice of Application which stated:

... you are required to submit a Response as per the enclosed Notice of Application dated June 2, 2010, and the Tribunal’s Rules of Procedure. If you do not, as set out in the enclosed Notice, the Tribunal may deem you to have accepted all of the allegations in the Application, proceed to deal with the Application without further notice to you, deem you to have waived all rights with respect to further notice or participation in the proceeding and decide the mater based only on the material before the Tribunal.

12China City Supermarket placed the June 15, 2010 correspondence in a new envelope and returned it to the Tribunal by regular mail.

CONSEQUENCES OF RESPONDENTS’ FAILURE TO FILE A RESPONSE AND COMPLY WITH THE TRIBUNAL’S RULES AND DIRECTIONS

13In Kearns v. 1327827 Ontario, 2009 HRTO 457, the Tribunal set out the consequences for failing to file a Response and comply with the Tribunal’s rules and directions:

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).

14Based on the above sequence of events, I am satisfied that the respondents received notice of the Application, but are evading service of further correspondence from the Tribunal, and are refusing or choosing not to participate in this proceeding.

15The consequences of the respondents’ failure to file a Response and comply with the Tribunal’s rules and directions is that the Tribunal deems them to have accepted all the allegations in the Application and to have waived all rights with respect to further notice or participation in this proceeding.

DIRECTIONS

16Subsection 43(2) of the Code and Rule 3.5 of the Tribunal’s Rules provide that an Application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions. Accordingly, unless the applicant waives his right to make oral submissions, the Tribunal shall schedule a one-day hearing.

17The applicant is directed to address the following in any further written or oral submissions that he decides to make.

18The onus is on the applicant to establish on a balance of probabilities that a violation of the Code has occurred. The Tribunal’s decision to deem the respondent to have accepted all the allegations set out in the Application does not mean that findings of discrimination have been or will be made. In Andrews v. Law Society of British Columbia, 1989 CanLII 2 (S.C.C.), the Supreme Court of Canada defined discrimination as follows:

Discrimination is a distinction which, whether intentional but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

19Based on my review, the Application raises the following issue with respect to liability:

(a) Did the respondents discriminate against the applicant when China City Supermarket advised the applicant that persons with assistive mobility devices were not welcome in the store and blocked the applicant’s entry into the store?

(b) Are both respondents liable or is one respondent liable for any Code violation and if one, which respondent?

20The Tribunal’s remedial powers are set out in subsection 45.2 of the Code, which provides:

(1) On an application under section n34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part 1 of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

21Based on my review, the Application raises the following issues with respect to remedy:

(a) Is the applicant entitled to compensation for injury to dignity, feelings and self-respect resulting from the discrimination?

(b) Should the Tribunal direct the respondent(s) to do anything else to promote compliance with the Code?

22With respect to compensation for injury to dignity, feelings and self-respect, the Divisional Court has held that humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages: ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.).

ORDER

23The Tribunal therefore makes the following orders:

(a) The respondents are deemed to have accepted all of the allegations set out in the Application.

(b) The respondents are deemed to have waived all rights with respect to further notice or participation in this proceeding.

(c) Within 21 days of the date of this Interim Decision, the applicant shall file any further written submissions and/or documents that he wants the Tribunal to consider in decision this Application, and inform the Tribunal if he wants to attend a hearing.

(d) If the applicant informs the Tribunal that he does not want to attend a hearing, the Tribunal will proceed to finally determine the Application, including deciding the appropriate remedy, based on the materials before the Tribunal that the applicant has filed.

(e) If the applicant wants to attend a hearing, the Tribunal’s Registrar will schedule a one-day hearing.

24I am not seized of this matter.