Covacha v. Fenworth Dental, 2010 HRTO 2119

Human Rights Tribunal of Ontario

B E T W E E N:

Jo-Ann Covacha

Applicant

-and-

Fenworth Dental and Dr. R. Diwan Dentistry

Professional Corporation o/a Fenworth Dental

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: October 20, 2010

Citation: 2010 HRTO 2119

Indexed as: Covacha v. Fenworth Dental

Interim Decision

1This Interim Decision addresses the respondent’s failure to file a Response to the Application as directed in the Tribunal’s earlier Interim Decision in this matter and the respondent’s Request for Order during Proceedings (“the Request”) that the Application be dismissed on the basis that the applicant was never employed by the respondent.

2The Tribunal has denied an earlier Request to dismiss the Application on the basis that the applicant had filed her Application against the wrong corporation: 2010 HRTO 1706. As the Tribunal stated in that Interim Decision, the applicant in this case appears to allege that the respondent decided not to employ her after purchasing the dental practice where she previously worked because of the applicant’s maternity leave, and thereby discriminated against her on the basis of sex “in respect of employment.”

3From the materials filed with the Tribunal, it appears that the respondent clearly wishes to refute that allegation. The proper way for it to do so is by filing a Response to the Application (using the form the Tribunal provides for this purpose), responding to each of the allegations in the Application and setting out any additional facts and allegations on which it relies.

4The respondent seems to be of the view that the Tribunal ought to dismiss the Application in the absence of any Response by it. However, Rule 8.2 of the Tribunal’s Rules of Procedure identifies the limited circumstances in which a named respondent need not respond to the allegations in an Application by filing a Response; none of those circumstances are present here.

5Section 40 of the Code requires the Tribunal to dispose of applications in fair, just and expeditious manner. Where no Response is filed, in order to fulfill its statutory mandate, the Tribunal must proceed to determine the Application in the absence of the respondent. In this regard, the respondent’s attention is drawn to Rule 5.5 of the Tribunal’s Rules of Procedure:

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.

6If the respondent wishes to participate in this proceeding, it shall file a Response within ten (10) days of the date of this Interim Decision. If a Response is not received by this date, the Tribunal may proceed without further notice to the respondent and may take any or all of the other steps set out in Rule 5.5.

7As previously indicated, the “Respondent’s Guide” to Applications under the Code and the form for filing a “Response to an Application under section 34 of the Code” are available on the Tribunal’s website, www.hrto.ca, under “New” Applications. The Tribunal’s Rules of Procedure are also available on the website.

8I am not seized of this matter.