Laura Mizen v. Transcom Worldwide, 2011 HRTO 1375

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laura Mizen

Applicant

-and-

Transcom Worldwide

Respondent

INTERIM decision

Adjudicator: Ena Chadha

Date: July 25, 2011

Citation: 2011 HRTO 1375

Indexed as: Mizen v. Transcom Worldwide

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on March 3, 2011, alleging discrimination with respect to employment on the basis of disability. The applicant alleges that, despite providing her employer with a medical note confirming her need for workplace accommodation, the respondent employer denied her appropriate accommodation and, as a result, she missed 3 days of work.

2On March 28, 2011, the Tribunal issued a Notice of Application to the respondent in which it directed that a Response to the Application must be filed with the Tribunal no later than May 2, 2011. No Response was received, the Notice of Application was not returned and there has been no communication from the respondent regarding the Application.

3Consequently, the Tribunal issued Interim Decision 2011 HRTO 1141, wherein the Tribunal noted the failure of the respondent to file a Response and provided the respondent until June 23, 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 could proceed without further notice to the respondent and may 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 that Interim Decision, a copy of that Interim Decision was sent to the respondent by courier.

DECISION

4In the previous Interim Decision, the respondent’s attention was drawn to Rule 5.5 of the Tribunal’s Rules of Procedure, 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.

5Neither the March 2011 Notice of Application or the June 2011 Interim Decision, have been returned to the Tribunal as undeliverable.

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 the respondent has received notice, the Tribunal will proceed to determine the Application in the absence of the respondent.

7It is now almost a month since the Response and accompanying explanation for the delay were due. No Response has been received from the respondent, despite having received Notice of the Application and an Interim Decision cautioning of the ramifications of failure to participate. 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 being alerted of the implications of Rule 5.5.

8In these circumstances, the Tribunal orders pursuant to Rule 5.5(c) that the respondent is deemed to have waived all rights with respect to further notice or participation in the proceeding. Pursuant to Rule 5.5(b) the Tribunal will proceed to deal with the Application without further notice to the respondent. The Tribunal further orders that the respondent is deemed 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.

DIRECTIONS

9The Tribunal makes the following Order:

a) 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;

b) The applicant is directed to submit, within 30 days of this Interim Decision, any additional materials, evidence and written submissions she wishes the Tribunal to consider in deciding this Application and, in particular, the applicant is directed to provide a copy of the medical documentation referenced in the Application;

c) The applicant is also required to advise the Tribunal in writing, within 30 days of this Interim Decision, as to whether or not she wishes to make oral submissions via conference call before the Tribunal finally determines the Application;

d) If the applicant advises that she does not wish to make oral submissions, the Tribunal will proceed to finally determine the Application, including deciding the appropriate remedy, based only on the materials before the Tribunal that have been filed by the applicant; and

e) If the applicant advises that she wishes to make oral submissions in addition to the submission of documentary materials/submissions, the Tribunal will schedule a 45 minute conference call.

10I am not seized of this matter.