Robinson v. Christine’s Fitness & Personal Training Inc., 2010 HRTO 28

Human Rights Tribunal of Ontario

B E T W E E N:

Dianne Robinson

Applicant

-and-

Christine’s Fitness & Personal Training Inc., Renay Cohen and Linda Sorichetti

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: January 7, 2010

Citation: 2010 HRTO 28

Indexed as: Robinson v. Christine’s Fitness & Personal Training

1This Application was filed June 16, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondents have not filed a Response. On November 18, 2009, the Tribunal wrote to the respondents advising that a Tribunal application is a legal proceeding, which, if a violation of the Code is found, 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 respondents’ attention was drawn to Rule 3.2 of the Tribunal’s Rules of Procedure for Transitional Applications under Sections 53(3) and 53(5) of the Human Rights Code, which reads as follows:

3.2 Where an Application (Form A or Form TR-1)) 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, including the allegations set out in the complaint;

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.

3The respondents were directed to file their Response within 35 days of the date of the letter, or the Tribunal would consider exercising the above powers.

4The Tribunal has not received a response from the respondents, nor have the letters to the respondents been returned to the Tribunal.

5In a similar case, Kearns v. 1327827 Ontario, 2009 HRTO 457, where the respondent failed to file a Response despite having received the Notice of Application, and despite an interim “no response” decision having been issued, the Tribunal noted:

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).

6With reference to the principles articulated in Kearns, supra and in Burns v. Employer’s Choice Staffing of Canada, 2008 HRTO 363, I find that it is appropriate in this case to deem the respondents to have accepted all of the facts alleged in the Application, and to have waived any right to participate in these proceedings.

7I will defer making a final ruling on the Application until after the applicant has had the opportunity to provide additional materials and to make oral submissions.

DIRECTIONS

8In my view, the most fair, just and expeditious way to deal with this Application is to schedule a hearing. At the hearing, the applicant need not present evidence on the facts already set out in her Application. Since I have found that the respondents are deemed to have accepted the facts and allegations set out in the Application, I am prepared to treat those facts as uncontradicted evidence.

9For the reasons set out above, I make the following order:

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 to notice or participation in these proceedings;

c. No later than two weeks before the date set for the hearing, the applicant may submit any additional document she wishes the Tribunal to consider in deciding this Application;

d. The Registrar-Transition will schedule a half-day hearing in this matter.

10I am not seized.