Whale v. Keele North Recycling, 2010 HRTO 2269

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ruth Whale

Applicant

-and-

Keele North Recycling Inc. and Romeo Dipateasta

Respondents

INTERIM decision

Adjudicator: Ena Chadha

Date: November 16, 2010

Citation: 2010 HRTO 2269

Indexed as: Whale v. Keele North Recycling

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 May 20, 2010 alleging discrimination with respect to employment because of sex.

2On July 26, 2010, the Tribunal issued a Notice of Application to the respondents. The Notice advised the respondents that a Response must be filed with the Tribunal no later than 35 days after July 26, 2010. No Response was received and the original Notice of Application has not been returned. There has been no communication from the respondents regarding the Application.

3Consequently, the Tribunal issued Interim Decision 2010 HRTO 1947, noting the respondents’ failure to file a Response and provided the respondents until October 11, 2010, to file a Response together with an explanation of why the Response was not filed in accordance with the original Notice of Application.

4The Interim Decision further stated that if the Response was not received, the Tribunal might proceed without further notice to the respondents and it might take any or all of the steps set out in Rule 5.5 of the Tribunal’s Rules of Procedure. Pursuant to the order set out in that Interim Decision, a copy of that Interim Decision was sent to the respondents by facsimile and courier delivery.

DECISION

5Rule 5.5 states as follows:

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.

6Neither the Notice of Application, nor the Interim Decision, have been returned to the Tribunal as undeliverable. The applicant has confirmed that the correct address has been provided for the respondents.

7In Kearns v. 1327827 Ontario, 2009 HRTO 457, 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. At paragraphs 11-14, the Tribunal noted that the enforcement procedures prescribed by the Code are important mechanisms available to the public for claiming and enforcing fundamental human rights. These enforcement procedures also provide a clear means for respondents to explain and defend against human rights allegations. Where no Response is filed and the Tribunal is satisfied the respondent has received notice, the Tribunal will proceed to determine the Application in the absence of the respondent.

8It has now been more than one month since the Response and accompanying explanation for the delay were due. No Response has been received from the respondents, despite having received notice of the Application and an Interim Decision regarding this matter. I am satisfied that the respondents have received notice of the Application and notice of the Tribunal’s Order directing them to file a Response. It appears that the respondents refuse, or have chosen not to participate in these proceedings, notwithstanding notice of the implications of Rule 5.5. In the circumstances, the Tribunal orders that the respondents are deemed to have waived all rights with respect to further notice or participation in the proceeding.

9The Tribunal will proceed without the participation of the respondents and deems the respondent to have waived their right to participate pursuant to Rule 5.5(c) and further deems the respondents to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a). Before the Tribunal finally determines the Application, the applicant will be provided an opportunity file any documents or materials she may wish the Tribunal to consider and to make oral submissions via teleconference.

9As such, the following is ordered:

i) The respondents are deemed to have waived all rights to notice or participation in these proceedings and are further deemed to have accepted all of the allegations set out in the Application;

ii) Within four weeks of this Interim Decision, the applicant may submit any additional documents or materials she wishes the Tribunal to consider in deciding this Application, and the applicant should advise the Tribunal whether or not she wishes to make oral submissions via teleconference call before the Tribunal finally determines the Application; and

iii) If the applicant advises that she does not have documentary materials 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.

10I am not seized of this matter.