Neil Michelin v. Chris Carter and Ralph Johnson, 2011 HRTO 1796

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Neil Michelin Applicant

-and-

Chris Carter and Ralph Johnson Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: October 4, 2011 Citation: 2011 HRTO 1796 Indexed as: Michelin v. Carter

1The applicant filed an Application with the Tribunal on April 15, 2010 alleging discrimination and reprisal with respect to employment and services, goods and facilities, on the basis of race, colour, ancestry, place of origin, ethnic origin, creed, family status and marital status contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”).

2On November 23, 2010, the organizational respondent filed a partial Response and a Request for an Order During Proceedings seeking that the Tribunal dismiss the Application on an early basis. By way of Interim Decision 2011 HRTO 162, the request to dismiss was denied and the organizational respondent was ordered to file a full Response (Form 2).

3On February 11, 2011, the organizational respondent filed its full Response (Form 2) and identified Chris Carter and Ralph Johnson as additional respondents.

4On March 2, 2011, the Tribunal issued a Notice to Named Respondents advising Chris Carter and Ralph Johnson that they had been identified as additional respondents and each was required to file a full Response (Form 2) no later than 35 days from the date of the letter.

5On April 13, 2011, the applicant filed a Request to Withdraw the Application as against the organizational respondent only. The Request to Withdraw appears to have been delivered to the organizational respondent but not the individual respondents.

6On May 5, 2011, respondent Carter wrote to the Tribunal providing a one page response to the applicant’s allegations and indicating that he was amenable to participating in mediation; however, did not file a full Response (Form 2) as required by the Tribunal’s Notice.

7By way of Interim Decision 2011 HRTO 1623, the Tribunal ordered respondent Johnson and respondent Carter to file proper Responses (Form 2) and for all respondents to file submissions in response to the applicant’s request to withdraw the Application as against the organizational respondent. The Interim Decision drew the parties’ attention to Rule 5.5 which empowers the Tribunal, as a result of a respondent’s failure to file a Response, to deem a respondent to have waived all rights with respect to further notice or participation in the proceeding and to make orders against respondents without their participation.

8On September 19, 2011, the organizational respondent filed submissions with respect to the applicant’s request to withdraw the Application as against it. The organizational respondent alleges that, should the applicant wish to pursue the Application against the two personal respondents, the organizational respondent maintains that these individuals were not acting in accordance with the organizational respondent’s policies. The organizational respondent submits that the Tribunal should accept the applicant’s withdrawal as against it.

9Respondent Johnson filed a Response (Form 2) on September 21, 2011; however, did not file a full response to Question 9. Respondent Johnson indicates that, as a Board Member of the organizational respondent, he believed that counsel for the organizational respondent would represent him in this matter.

10Respondent Carter did not file a Response (Form 2).

DECISION

Withdrawal

11The Tribunal accepts the applicant’s withdrawal of the Application as against the organizational respondent.

Lack of Response

12The only communication the Tribunal has received from respondent Carter was the May 5, 2011 letter disputing the allegations and stating that he was prepared to participate in mediation. Respondent Carter has twice been directed to file a proper Response (Form 2); however has failed to do so.

13Rule 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.

14The Tribunal will forward a copy of this Interim Decision and Notice of Mediation to respondent Carter. However, other than providing copies of this Interim Decision and the Notice of Mediation, the Tribunal determines that it will proceed without further notice to respondent Carter and may take any or all of the steps set out in Rule 5.5.

Incomplete Response

15Respondent Johnson is directed within 10 days of the date of this Interim Decision to file a full answer in response to Question 9.

ORDERS

16In summary, the Tribunal orders as follows:

• The Application is withdrawn against the organizational respondent and the style of cause is amended accordingly;
• Other than providing copies of this Interim Decision and the Notice of Mediation, the Tribunal will proceed without further notice to respondent Carter and may take any or all of the steps set out in Rule 5.5;
• Within 10 days of the date of this Interim Decision, respondent Johnson is required to file a full response to Question 9 of Form 2; and
• Upon receipt of the respondent Johnson’s response to Question 9, the Tribunal will provide a copy of the same to the applicant and will schedule a mediation.

17I am not seized of this matter.