Genevieve v. 1705129 Ontario Limited, 2011 HRTO 2130

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rochette Genevieve

Applicant

-and-

1705129 Ontario Limited c.o.b. Centre Educatif Les Petit Chercheurs

Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: November 24, 2011

Citation: 2011 HRTO 2130

Indexed as: Genevieve v. 1705129 Ontario Limited

BACKGROUND

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 April 28, 2011.

2On June 3, 2011, the Tribunal issued a Notice of Application to the respondent in which it directed that a Response to the Application must be filed with the Tribunal by no later than July 8, 2011. The respondent did file a Response as directed.

3On July 25, 2011, the Tribunal issued a second Notice of Application to the respondent in which the Tribunal directed that a Response to the Application must be filed with the Tribunal not later than August 29, 2011. The second Notice of Application was sent to the respondent by mail at an alternative address for the respondent provided by the applicant.

4The respondent did not file a Response, nor was the Tribunal’s correspondence to the respondent returned.

5On September 19, 2011, the Tribunal issued an Interim Decision, 2011 HRTO 1723, advising the respondent that if it wished to participate in the proceeding, it must file a Response with the Tribunal within 10 days of the date of the Interim Decision, together with an explanation of why the Response was not filed in accordance with the Notice of Application. The respondent was further warned that if it did not respond as directed, the Tribunal might proceed without further notice to the respondent and take any or all of the steps set out in Tribunal Rule 5.5.

6As of the date of this Interim Decision nothing has been received from the respondent, nor has the Tribunal’s correspondence to the respondent been returned.

ANALYSIS

7As the previous Interim Decision explained, 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.

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 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. 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. See also the recent decision in Clements v. Duke and Duchess, 2011 HRTO 1438.

9It has now been more than six weeks since the Response and accompanying explanation for the delay were due from the respondent. No Response has been received from the respondent. 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. It appears that the respondent refuses or has chosen not to participate in these proceedings, notwithstanding notice of the implications of Rule 5.5.

10The Tribunal will proceed with the Application without the participation of the respondent, and I deem the respondent to have waived its right to participate pursuant to Rule 5.5(c) and 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 to 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

12I order the following:

i) The respondent has waived all rights to notice or participate in these proceedings and is 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.