Roepke v. Accenture Inc., 2011 HRTO 1944

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Roepke Applicant

-and-

Accenture Inc., Rachel Stuchberry and Mary Frank Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: October 27, 2011 Citation: 2011 HRTO 1944 Indexed as: Roepke v. Accenture Inc.

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 May 19, 2011.

2On July 13, 2011, the Tribunal issued a Notice of Application to the respondents in which it directed that the respondents to file Responses to the Application with the Tribunal no later than August 17, 2011. No Response was received from any of the respondents.

3Consequently on September 19, 2011, the Tribunal issued Interim Decision 2011 HRTO 1720, wherein the Tribunal noted the respondents' failure to file Responses and provided the respondents with ten additional days to file Responses together with an explanation of why the Responses were not filed in accordance with the original Notice of Application.

4The Interim Decision expressly stated that if a Response was not received, the Tribunal could proceed without further notice to the respondents and may take any or all of the steps set out in Rule 5.5 of the Tribunal's Rules of Procedure. A copy of the Interim Decision was sent to the respondents by regular mail, courier and fax.

DECISION

5In the previous Interim Decision, the respondents' 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.

6Neither the July 2011 Notice of Application nor the September 2011 Interim Decision were returned to the Tribunal as undeliverable.

7In 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.

8It is now three weeks since the Response and accompanying explanation for the delay were due. No Response has been received from the respondents, despite having received the Notice of the Application and an Interim Decision cautioning of the ramifications of failure to participate. 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 being alerted of the implications of Rule 5.5.

9In these 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 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).

10Before the Tribunal finally determines the Application, the applicant will be provided an opportunity to file any documents or materials she may wish the Tribunal to consider and to make oral submissions via teleconference.

DIRECTIONS

11The Tribunal makes the following Order:

1. 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;

2. 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;

3. 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;

4. 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

5. 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.

12I am not seized of this matter.