Roepke v. Accenture Inc., 2011 HRTO 2230

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: December 12, 2011 Citation: 2011 HRTO 2230 Indexed as: Roepke v. Accenture Inc.

WRITTEN SUBMISSIONS BY

Elizabeth Roepke, Applicant ) Self-Represented Accenture Inc., Rachel Stuchberry, ) Adrian Ishak, Counsel and Mary Frank, Respondents )

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, alleging discrimination with respect to employment on the basis of disability.

2The Application was delivered to the respondents by way of Notice of Application dated July 13, 2011, and the respondents were directed to file Responses (Form 2) within 35 days. No Response was received from any of the respondents and, as a result, the Tribunal issued two previous Interim Decisions (2011 HRTO 1720 and 2011 HRTO 1944) with respect to the respondents’ failure to file Responses.

3Interim Decision 2011 HRTO 1720 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, which allows the Tribunal to proceed to deal with an Application without further notice to a respondent.

4Ultimately, by way of Interim Decision 2011 HRTO 1944, dated October 27, 2011, the Tribunal ordered that, given the respondents’ failure to file Responses and/or communicate with the Tribunal, the respondents were deemed to have waived all rights to notice or participation in these proceedings and further deemed to have accepted all of the allegations set out in the Application.

Respondents’ Request to File a Response

5On November 14, 2011, the respondents filed a Request for Order During Proceedings, seeking the following relief:

i) the Order set out in Interim Decision 2011 HRTO 1944 be reversed and that the respondents be entitled to respond to the Application and participate in the proceeding; and

ii) the respondents be granted a 30 day extension of time to file a Response.

6The respondents submit that there were a number of administrative errors and extenuating factors which caused the respondents to be unaware of the Application and, thereby, fail to respond. The respondents explained that the personal respondents were each on leaves of absences from the corporate respondent for various extended periods of time, including maternity leave. As a result of the applicant’s provision of the Toronto West office as the contact address, the Tribunal’s packages containing the Notice of Application and Interim Decisions were sent to Toronto West, although all interested parties were employed by the Niagara office. The Tribunal’s packages were then misfiled in the wrong employee’s mailbox, that being an employee with a vaguely similar name to one of the personal respondents. In addition, there was also a failure of the respondents’ mailroom to properly record delivery of couriered packages. As a result of these “internal mail distribution issues” and the applicant’s provision of the Toronto West office, as opposed to the Niagara office, as the contact address, the respondents were unaware of the Application until the Tribunal’s second Interim Decision.

7The respondents further point out that during the relevant period of time, counsel for the respondents has been in continuous contact with the applicant regarding a Superior Court of Justice action (Claim No. 2702/11) launched by the applicant in April 2011. The respondents indicate that in the correspondence and communications with the applicant, including participation in a Settlement Case Conference, the applicant never raised the issue of the respondents’ failure to respond to the Tribunal Application.

8In her written submissions in response to the respondents’ Request for an Order During Proceedings, the applicant states that it is not her intention to preclude the respondents from participating in the process. The applicant further submits that the representatives of the organizational respondent were aware of her intention to file a human rights Application following the termination of her employment. The applicant indicates that the Small Claims Court matter pertained to a dispute over the forfeiture of pension contributions.

9Having given careful consideration to the parties’ submissions and in the circumstances of this case, I find it appropriate to set aside my previous order as set out in Interim Decision 2011 HRTO 1944. Rule 1.7(a) of the Tribunal’s Rules provides the Tribunal with wide discretion in ensuring “the fair, just and expeditious resolution of any matter before it”. I find the respondents have provided a satisfactory explanation for their failure to file Response and, with a view to fairness and due process, the respondents should be allowed to participate in this proceeding and file a Response.

Directions

10The Tribunal makes the following Order:

• Within 30 days of the date of this Interim Decision, the respondents are directed to deliver to the applicant and file with the Tribunal a Response (Form 2). The respondents are directly to specifically indicate whether or not they are amenable to participating in mediation; and

• Within 21 days of receipt of the respondents’ Response, the applicant is directed to deliver to the respondents and file with the Tribunal a Reply.

11I am not seized of this matter.