Ignazio Nobile v. Ristorante Pinocchio, 2010 HRTO 560

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ignazio Nobile

Applicant

-and-

Ristorante Pinocchio

Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: March 15, 2010

Citation: 2010 HRTO 560

Indexed as: Nobile v. Ristorante Pinocchio

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on July 8, 2009. The purpose of this Interim Decision is to address the respondent’s failure to provide a Response to the Application.

2On August 24, 2009, the Tribunal issued a Notice of Application and delivered the Application to the respondent. The Notice was sent to Michael Dacosta, who was listed in the Application as the contact person and owner of the respondent. The respondent was advised that a Response must be filed with the Tribunal not later than 35 days after August 24, 2009.

3On November 25, 2009, the Tribunal issued an Interim Decision, 2009 HRTO 2006, as the respondent had not filed a Response, nor had the Tribunal’s correspondence been returned. The Interim Decision noted that where a respondent has failed to respond to an Application, and pursuant to Rule 5.5 of the Tribunal’s Rules of Procedure, the Tribunal may deem the respondent to have accepted all of the allegations in the Application and proceed to deal with the Application without further notice to the respondent.

4The Tribunal ordered the respondent to file a Response within ten days from the date of the Interim Decision, together with an explanation of why the Response was not filed earlier in accordance with the Tribunal’s Rules. The Interim Decision indicated that if a Response was not received by that date, the Tribunal may proceed without further notice to the respondent, and may take any or all of the steps set out in Rule 5.5.

5On December 4, 2009, Mr. Dacosta contacted Tribunal staff and indicated that he received the Interim Decision but that he had not received the Application. Tribunal staff provided Mr. Dacosta with a copy of the Notice and Application by fax. To date, the respondent has not filed a Response.

6In 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 that the respondent has received notice, the Tribunal will proceed to determine the Application in the absence of the respondent. In such circumstances, 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).

7It has now been more than two months since the respondent’s Response and accompanying explanation for the delay were due. The respondent has failed to file a Response, despite having received the above-referenced Interim Decision and having been provided with the Notice and Application on more than one occasion. I am satisfied that the respondent has received notice of the Application and notice of the Tribunal’s Order directing it to file a Response. It appears that the respondent refuses, or has chosen not to participate in these proceedings, notwithstanding notice of the implications of Rule 5.5. As a result, the Tribunal will proceed without the participation of the respondent and will deem the respondent to have accepted all of the facts alleged in the Application and to have waived any right to participate in these proceedings.

8The applicant will be provided with an opportunity to file any documents or materials, including written submissions, he may wish the Tribunal to consider. In addition, the applicant will be provided with an opportunity to make oral submissions before the Tribunal finally determines the Application, unless this right is waived.

9In the circumstances, the Tribunal makes the following Order:

• The respondent is deemed to have accepted all of the allegations set out in the Application;

• The respondent is deemed to have waived all rights to notice or participation in these proceedings;

• Within 14 days of the date of this Interim Decision, the applicant should advise the Tribunal’s Registrar, in writing, whether he prefers to have a hearing in person or by teleconference. If the applicant does not indicate his preference within 14 days, the Tribunal will schedule a hearing by teleconference; and

• Within 21 days of the date of this Interim Decision, the applicant may submit any additional documents or materials, including written submissions, he wishes the Tribunal to consider in deciding this Application.

10I am not seized of this matter.