Human Rights Tribunal of Ontario
B E T W E E N:
Assunta Young
Applicant
-and-
Marathon Pulp Inc. and Eugene Reid
Respondents
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: Young v. Marathon Pulp
1The applicant filed an Application on February 9, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment. At the same time, she filed a Request to Expedite Proceedings. That Request remains outstanding because, in the interim, one of the respondents, Marathon Pulp Inc. (“Marathon”), initiated proceedings under s. 54.1 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3.
2An Interim Decision was released on June 9, 2009, 2009 HRTO 800, in which the following orders were made:
Granting the applicant’s request to amend her Application;
Denying Marathon’s request to stay the proceedings against it as the amended Application no longer contained a claim for monetary remedies against it and was not a “claim provable in bankruptcy”; and
Denying Eugene Reid’s request for production.
3There were two outstanding issues following the June 9, 2009 Interim Decision. The first was Marathon’s failure to file a Response. In light of the confusion caused by the bankruptcy, Marathon was given until June 17, 2009, to file a Response to this Application.
4The second issue concerned the applicant’s Request to expedite. It appeared that the Request to expedite was predicated on the fact that the applicant expected that she would be subject to further reprisals in the workplace upon her return to work. However, from the materials submitted by the two respondents it appeared that Marathon had ceased operation and there would no longer be a position to which the applicant could return. In the June 9, 2009 Interim Decision, I wrote:
Before the Tribunal can decide the issue of urgency, the parties must provide a factual update concerning whether Marathon has permanently ceased operations at the facility and/or whether the applicant’s position has been eliminated.
5In response to the June 9, 2009 Interim Decision, counsel for the Trustee of the Estate of Marathon Pulp Inc., a bankrupt, (“the Trustee”) wrote on June 12, 2009, that operations at the facility had ceased in the spring of 2009 and that the Trustee would be bringing a motion to divest its interest in the facility. Counsel further indicated that operations at the Mill would only resume if a third party purchased the facility. Finally, counsel advised that there was no money in the bankrupt estate to file a Response.
6Counsel for the applicant wrote on June 19, 2009 to advise that they were no longer retained. To date, the applicant has provided the Tribunal with no information concerning her position with the organizational respondent or operations at the facility. In the absence of any information from the applicant, I am presuming that the information provided by the respective respondents on the cessation of operations at the facility is accurate. In the absence of any update from the parties to the contrary, I am further presuming that operations at the facility have not resumed. Accordingly, there is no factual basis to support the applicant’s Request to expedite her Application and that request is denied.
7With respect to the failure of Marathon to file a Response, its attention was drawn to Rule 5.5 of the Tribunal’s Rules of Procedure in the June 9, 2009 Interim Decision:
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.
8This case is distinguishable from the other cases in which a respondent has failed to file a response in that the failure is the result of a bankruptcy. Moreover, the personally named respondent, Eugene Reid, has filed a Response in which he disputes many of the applicant’s allegations. This is not a suitable case, therefore, in which to deem Marathon to have accepted all of the allegations in the Application or decide the matter based only on the material before the Tribunal. However, in light of the position taken by the Trustee, the Tribunal will proceed to deal with the Application without further notice to Marathon. Marathon is also deemed to have waived all rights with respect to further notice or participation in the proceedings.
9At this juncture, it is appropriate to require the applicant to indicate whether or not she is interested in proceeding with her Application. She has not communicated with the Tribunal since her counsel got off the record on June 19, 2009. If the Tribunal does not hear from the applicant by March 1, 2010, it will deem the applicant to have abandoned her Application.
10I am not seized of this matter.
Dated at Toronto, this 1st day of February, 2010.
“Signed by”
Naomi Overend
Vice-chair