Wendel O’Brien v. Organic Works Inc. o/a Organic Works Bakery and Peter Cuddy, 2011 HRTO 101

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wendel O’Brien

Applicant

-and-

Organic Works Inc. o/a Organic Works Bakery and Peter Cuddy

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: January 13, 2011

Citation: 2011 HRTO 101

Indexed as: O’Brien v. Organic Works

1The purpose of this Interim Decision is to address the respondents’ failure to file a Response to the Application and to provide directions to the applicant with respect to disposing of his Application.

BACKGROUND

2The applicant filed an Application on May 27, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination on the basis of disability in employment against his former employer and the president of the respondent that employed him.

3On July 22, 2010, the Tribunal issued a Notice of Application and delivered the Application to the respondents by regular mail at the address provided by the applicant. The Notice directed the respondents to file a Response with the Tribunal no later than thirty-five (35) days from the date of the Notice. The Notice also provided the following warning:

If you fail to respond to the Application, the Tribunal may deem you to have accepted all of the allegations in the Application, proceed to deal with the Application without further notice to you, deem you to have waived all rights with respect to further notice or participation in the proceeding and decide the matter based only on the material before the Tribunal.

4The respondent did not file a Response. The Tribunal’s correspondence was not returned.

5On October 20, 2010, the Tribunal issued an Interim Decision, 2010 HRTO 2116, and delivered it to the respondents by regular mail and courier, to the attention of the respondent Peter Cuddy. At paragraphs 3 and 5 of the Interim Decision, the Tribunal stated as follows:

3An application to the Tribunal starts a legal proceeding. A finding that a violation of the Code has occurred 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 is drawn to Rule 5.5 of the Tribunal’s Rules which reads as follows:

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.

5If the respondents wish to participate in this proceeding, they shall file a Response with the Tribunal within 10 days of the date of this Interim Decision, together with an explanation of why the Response was not filed in accordance with the Notice of Application. If a Response is not received, the Tribunal may proceed without further notice to the respondents and may take any or all of the steps set out in Rule 5.5.

6The couriered package was delivered and signed for at the address for the respondents provided by the applicant. This address is the same address listed on the organization respondent’s website. The package sent by regular mail has not been returned.

DECISION

7In Kearns v. 1327827 Ontario, 2009 HRTO 457, the Tribunal set out the consequences for failing to file a Response and comply with the Tribunal’s Rules and directions:

11The Code is an important public statute which enshrines our most basic and fundamental rights and freedoms. The enforcement procedures in the Code are equally important, since without an effective means of claiming a violation of a right, and seeking redress where a violation is found, those fundamental human rights would have little meaning.

12The procedures established by the Tribunal’s Rules provide a mechanism to resolve disputes arising under the Code fairly and expeditiously. An individual who believes his or her rights have been infringed may bring an Application. That Application must be complete and set out the allegations which, in the applicant’s view, constitute a violation of the Code. Before serving an Application on a person or organization named as a respondent, the Tribunal will review the Application to ensure that it is complete and that it appears to be within the jurisdiction of the Code.

13Once served with an Application, if the respondent wishes to participate and defend against the claim made by the applicant, the respondent has only to file a Response. The Tribunal provides a respondent with clear notice of what is required, and has prepared a Guide which assists a respondent in completing its Response. The Response also provides a respondent with an opportunity to indicate which facts or allegations in the Application are agreed to, and which are disputed.

14A respondent who refuses, or chooses not to file a Response should not be able to frustrate the objects of the Code, and the applicant’s right to assert a claim and seek a timely determination of that claim. Section 40 of the Code requires the Tribunal to dispose of Applications in a way which will provide for “a fair, just and expeditious resolution of the merits of the application”. Where no Response is filed, in order to fulfill this statutory mandate, the Tribunal will proceed to determine the Application in the absence of the respondent. 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). (emphasis in original)

8Based on the above, I am satisfied the respondents have received notice of the Application and the decision of the Tribunal directing the respondents to file its Response. The respondents refuse, or have chosen not, to participate in these proceedings.

9The consequences of the respondents’ failure to file a Response and comply with the Tribunal’s Rules and directions is that the Tribunal deems the respondents to have accepted all the allegations in the Application and to have waived all rights with respect to further notice or participation in this proceeding.

DIRECTIONS & ORDER

10Subsection 43(2) of the Code and Rule 3.5 of the Tribunal’s Rules provide that an Application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions. Accordingly, the applicant will be provided with an opportunity to make oral submissions, if requested.

11The onus is on the applicant to establish on a balance of probabilities that a violation of the Code has occurred. In any further submissions, the applicant is directed to explain how the facts upon which he relies are complete and sufficient to justify a finding that the Code has been violated.

12Having regard to the 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. Within four weeks of the date of this Interim Decision, the applicant should advise the Tribunal whether he wishes to make oral submissions before the Tribunal finally determines the Application and, if he does, whether he is content to do so by way of a teleconference call as opposed to attending an in person hearing;

d. Within four weeks 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; and

e. If the applicant does not submit additional documents or materials including submissions, the Tribunal will proceed to finally determine the Application, including whether a violation has occurred and, if it has, the appropriate remedy, based only on the materials before the Tribunal that have been filed by the applicant.

13I am not seized of this matter.