Whale v. Keele North Recycling, 2011 HRTO 136

Ruth Whale

Applicant

-and-

Keele North Recycling Inc. and Romeo Dipateasta

Respondents

interiM DECISION

Adjudicator: Judith Keene

Date: January 19, 2011

Citation: 2011 HRTO 136

Indexed as: Whale v. Keele North Recycling

1The applicant filed an Application under section 34 of the Ontario 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. As of September 27, 2010, the Tribunal had not received a Response from the respondents, nor had the original Notice of Application been returned.

3Consequently, the Tribunal issued Interim Decision 2010 HRTO 1947 (“the September Interim Decision”), noting the respondents’ failure to file a Response and providing 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. The September 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 the September Interim Decision, a copy of the September Interim Decision was sent to the respondents by facsimile and courier.

4The Tribunal issued another Interim Decision dated November 16, 2010, 2010 HRTO 2269 (“the November Interim Decision”), when the respondents failed to file a Response as directed in the September Interim Decision. In the November Interim Decision, the Tribunal stated, at paragraphs 8 and 9:

It 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.

The 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.

5The November Interim Decision was not returned to the Tribunal.

6The applicant filed a letter with the Tribunal on November 26, indicating that she did not have further information to convey.

7After review of the file materials, the Tribunal issued a Case Assessment Direction on January 6, 2011, requesting further information in respect of the remedy requested by the applicant. The Case Assessment Direction was sent to all parties by regular mail.

8On January 12, 2011, the Registrar received a letter dated January 12, 2011, from a lawyer, who indicated that he had just been retained by the respondents in respect of the Application. In the letter, the respondents’ lawyer stated that the respondents had not been aware prior to January 6, 2011, “of your letter of July 26, 2010 and the Application as it appears that the individual responsible did not bring this matter to my client’s attention”. The letter indicates that the respondents “will be filing a Response to the Application on or before January 14, 2011”. The letter requests that no further action be taken by the Tribunal until the Response is received, and that the Tribunal allow the Application “to proceed in the ordinary course”.

9Rule 1.7(a) of the Tribunal’s Rules provides the Tribunal with wide discretion in ensuring “the fair, just and expeditious resolution of any matter before it”.

10At this point, the Tribunal has insufficient information that would support a conclusion that it would be fair to allow the respondents to participate further in the resolution of this Application, or to cause any significant further delay in dealing with this Application.

11The respondents have already undertaken to deliver to the applicant and file with the Tribunal a Response (Form 2), on or before January 14, 2011. In addition, the respondents are directed to deliver to the applicant and file with the Tribunal any information upon which they rely, in addition to the January 12 letter, to explain why they did not previously file a Response. In particular, the Tribunal directs the respondents to provide an explanation as to why the Application, Tribunal correspondence and Interim Decisions that were previously faxed, mailed and couriered to them and which were not returned to the Tribunal, other than the Case Assessment Direction of January 6, 2011, appear to have been disregarded by the respondents. The respondents are directed to deliver and file this additional information to the Tribunal within ten days of the date of this Interim Decision.

12The respondents are also directed to deliver to the applicant and file with the Tribunal a proposal for how, if they are allowed to participate further, the time limits set out in the Tribunal’s Rules could be shortened to allow this Application to be resolved, by settlement or through a hearing on the merits, within a year of the date of the Application.

13After reviewing the respondents’ written explanation, the applicant may provide written comment on the issue of whether it would be fair to allow the respondents to participate further in the resolution of this Application. If the applicant wishes to provide written comment, she must do so within twenty days of the date of this Interim Decision.

Dated at Toronto, this 19^th day of January, 2011.

”Signed by”_____________________

Judith Keene

Vice-chair