Stephen Shepherd v. Maximum Detailing, 2011 HRTO 1322

Human Rights Tribunal of Ontario

Between:

Stephen Shepherd Applicant

• and -

Maximum Detailing Respondent

Interim Decision

Adjudicator: Naomi Overend Date: July 11, 2011 Citation: 2011 HRTO 1322 Indexed as: Shepherd v. Maximum Detailing

NO RESPONSE

1The applicant filed this Application on January 7, 2011, alleging discrimination in employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2By letter dated April 12, 2011, the Tribunal served the Notice of Application on the respondent. The respondent was advised that a Response must be filed with the Tribunal no later than 35 days after April 12, 2011.

3Having received no Response, the Tribunal issued Interim Decision 2011 HRTO 1044, wherein the Tribunal noted the failure of the respondent to file a Response and provided the respondent until June 10, 2011 to file a Response together with an explanation of why the Response was not filed in accordance with the original Notice of Application. The Interim Decision further stated that if the Response was not received, the Tribunal might proceed without further notice to the respondent and it might take any or all of the steps set out in Rule 5.5 of the Tribunal's Rules of Procedure.

4The Interim Decision was sent to the respondent by courier. No Response or communication was received from the respondent in response to the either the Application or the Interim Decision. Neither the Notice of Application, nor the Interim Decision, have been returned to the Tribunal as undeliverable.

5Rule 5.5 reads 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 may take any of the other steps in Rule 5.5.

6In Kearns v. 1327827 Ontario, 2009 HRTO 457, the Tribunal set out its approach, and rationale for that approach, in circumstances where a respondent fails to file a Response after having been cautioned. 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.

7At paragraphs 11-14 of Kearns, 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.

8It has now been more than one month since the Response and accompanying explanation for the delay were due. 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.

9It appears that the respondent refuses, or has chosen not to participate in these proceedings, notwithstanding notice of the implications of Rule 5.5. In the circumstances, the Tribunal will proceed without the participation of the respondent and deems the respondent to have waived its right to notice and to participate pursuant to Rules 5.5(b) and (c) and further deems the respondent to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a).

OTHER PROCEEDING

10In response to the question "what happened" in section 8 of the Application, the applicant advises that he sustained a workplace injury. He alleges that the respondent made misrepresentations to the Workplace Safety and Insurance Board ("WSIB"), which resulted in his claim being denied.

11Although the applicant advises in sections 14 and 15 of his Application that the facts of his Application are not part of another proceeding that is still in progress or completed, it is not clear whether he, in fact, has appealed the denial of his WSIB claim. In the final sentence of section 8 of his Application, the applicant makes the following comment: "For these reasons, I am appealing my claim for WSIB and I feel he disrespected my human rights."

12The Tribunal has no jurisdiction to hear an appeal of the applicant's claim for WSIB, but can only address those allegations which involve a violation of the Code. Before the Tribunal determines the Application, this issue needs to be clarified. The applicant is directed to advise the Tribunal whether he filed a separate appeal with respect to his WSIB claim by July 29, 2011.

13Once this issue is determined, the Tribunal will issue further directions to the applicant with respect to how it will proceed with respect to the allegations in his Application over which it has jurisdiction.

14In sum, the following is ordered:

• The respondent is deemed to have waived all rights to notice or participation in these proceedings and is further deemed to have accepted all of the allegations set out in the Application; and
• By July 29, 2011, the applicant is directed to advise the Tribunal whether he has filed a separate appeal with respect to his WSIB claim.

15I am not seized of this matter.