Human Rights Tribunal of Ontario
B E T W E E N:
Gabriella Bodis
Applicant
-and-
The Black Cat
Respondent
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: Bodis v. The Black Cat
1The applicant filed this Application on March 28, 2011, alleging discrimination in services because of race, colour, ancestry, ethnic origin, creed and sexual orientation contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).
2By letter dated April 26, 2011, the Tribunal served the Notice of Application on the respondent. The respondent was advised that a Response must be filed with the Tribunal not later than 35 days after April 26, 2011.
3Having received no Response, the Tribunal issued Interim Decision 2011 HRTO 1297, wherein the Tribunal noted the failure of the respondent to file a Response and provided the respondent until July 16, 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 regular mail courier at 3513 and 3515 Dundas West, Toronto. No Response or communication was received from the respondent in response to either the Application or the Interim Decision. Neither the Notice of Application, nor the Interim Decision, has 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 three weeks 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 orders that the respondent is deemed to have waived all rights with respect to further notice or participation in the proceeding.
10The Tribunal will proceed to an in-person hearing 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).
11I am not seized of this matter.
Dated at Toronto, this 30th day of August, 2011
”signed by”____
Naomi Overend
Vice-chair