Husain v. Tortoise Restaurant Group, 2011 HRTO 2056

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohamed Husain

Applicant

-and-

Tortoise Restaurant Group, Robert Lefebvre, Terry Campbell, Clarke Lishman, Stuart Beeston, Gail Wright and Chris Ferringo

Respondents

A N D B E T W E E N:

Mohamed Husain

Applicant

-and-

Tortoise Restaurant Group, Jim Lishman,

Stuart Beeston and Clarke Lishman

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: November 10, 2011

Citation: 2011 HRTO 2056

Indexed as: Husain v. Tortoise Restaurant Group

1The applicant filed an Application in Tribunal File No. 2009-02940-I under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code"), on July 15, 2009 alleging discrimination on the basis of race, ancestry, place of origin, ethnic origin and reprisal in employment. The applicant filed an Application in Tribunal File No. 2009-04407-I under section 34 of the Code on December 16, 2009 alleging reprisal in employment.

2Following an unsuccessful mediation, a Case Assessment Direction ("CAD") was issued on April 12, 2011 seeking the parties' submissions on consolidating the two Applications. In the CAD, the Tribunal also noted that it appeared that no Response was filed by Jim Lishman in Tribunal File No. 2009-04407. The Tribunal directed the respondents' counsel to confirm in writing whether he was representing Jim Lishman.

3The respondents' counsel filed submissions stating that his clients did not object to the Applications being consolidated. He also stated that with the exception of Chris Ferringo, he represented all of the respondents. He noted that Jim Lishman is not a personal respondent, but would represent him if he were named a personal respondent, and pointed out that the Tribunal's earlier correspondence to the parties did not identify Jim Lishman as a personal respondent.

4Neither the applicant nor the personal respondent Chris Ferringo filed submissions in response to the CAD and the time for doing so has passed.

5In a previous Interim Decision (2011 HRTO 1658), the Tribunal ordered that the two Applications be consolidated and heard together.

6At paras. 8 to 10 of that Interim Decision, it also stated:

[8] It appears that the Tribunal made an error in identifying the personal respondents when it sent the Application in Tribunal File No. 2009-4407-I to the respondents for Response, as well as in its other communications with the parties. Jim Lishman, Stuart Beeston and "Clark" Lishman are named as personal respondents in Tribunal File 2009-04407, but the Tribunal's correspondence did not identify Jim Lishman as a personal respondent. The respondents' counsel has stated that he would also be representing Jim Lishman.

[9] Accordingly, the Tribunal confirms that Jim Lishman as well as Stuart Beeston and Clark Lishman are named as personal respondents in Tribunal File 2009-04407-I.

[10] Accordingly, Jim Lishman is given 35 days from the date of this Interim Decision to file a Response if he wishes to file a Response beyond that which has already been filed. If he does not wish to file an additional Response, then the Tribunal directs that within 35 days of the date of this Interim Decision he provide written confirmation to that Tribunal, copying the other parties, that he is adopting the Response that was already filed in Tribunal file 2009-04407-I.

7It has been more than 35 days since the date of the Interim Decision and Mr. Lishman has not, by himself or through counsel, contacted the Tribunal.

8An 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 individual and corporate respondents without their participation. The respondent's attention is 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.

9The respondents' counsel has stated that he would also be representing Mr. Lishman. Accordingly, the Tribunal shall send a copy of this Interim Decision to the respondents' counsel by email and fax.

10If Mr. Lishman wishes to participate in this proceeding, he shall file a Response within five (5) days of the date of this Interim Decision, together with an explanation of why the Response was not filed in accordance with the Notice of Application, or provide written confirmation to the Tribunal, copying the other parties, that he is adopting the Response that was already filed in Tribunal File 2009-04407-I. If a Response or confirmation is not received, the Tribunal may proceed without further notice to the respondent and may take any or all of the steps set out in Rule 5.5.

11I am not seized of this matter.