Emma Clements v. Duke and Duchess, 2011 HRTO 1438

Human Rights Tribunal of Ontario

Between:

Emma Clements Applicant

-and-

Duke and Duchess, Billy Fatkin Junior and Sean Phillips Respondents

Interim Decision

Adjudicator: Ena Chadha Date: August 2, 2011 Citation: 2011 HRTO 1438 Indexed as: Clements v. Duke and Duchess

1The applicant filed this Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on December 1, 2010.

2On March 10, 2011, Tribunal issued a Notice of Application to the respondents in which it directed that Responses to the Application must be filed with the Tribunal not later than April 13, 2011. No Response was received and the original Notice of Application was not returned.

3Consequently, the Tribunal issued Interim Decision 2011 HRTO 1156, noting the respondents' failure to file Responses and providing the respondents ten days to file a Response together with an explanation of why the Responses was not filed in accordance with the original Notice of Application.

4The Interim Decision explained that an 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 respondents without their participation under Rule 5.5 of the Tribunal's Rules of Procedure which provides:

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.

5The 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 that Interim Decision, a copy of that Interim Decision was sent to the respondents by courier delivery.

6As of the date of this Interim Decision, the respondents have not filed a Response or Responses, nor has the Tribunal's correspondence to them been returned.

7Neither the Notice of Application, nor the Interim Decision, have been returned to the Tribunal as undeliverable. The courier tracking details confirm the Interim Decision was delivered and signed for at the corporate respondent's premises.

8In 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.

9It 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.

10The Tribunal will proceed without the participation of the respondents, and deems the respondents 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).

11Before 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. She is also directed to advise the Tribunal whether she wishes to provide oral evidence or make oral submissions in support of her Application.

ORDER

12As such, the following is ordered:

i) The respondents are deemed to have waived all rights to notice or participation in these proceedings and are further deemed to have accepted all of the allegations set out in the Application;

ii) Within four weeks of this Interim Decision, the applicant may submit any additional documents or materials she wishes the Tribunal to consider in deciding this Application, and the applicant should advise the Tribunal whether or not she wishes to make oral submissions via teleconference call before the Tribunal finally determines the Application; and

iii) If the applicant advises that she does not have documentary materials to submit, or 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.

13I am not seized of this matter.