Human Rights Tribunal of Ontario
B E T W E E N:
Raymond MacKinnon
Applicant
-and-
Celtech Plastics Ltd. and Nahum Williams
Respondents
INTERIM DECISION
Adjudicator: Alan G. Smith
Indexed as: MacKinnon v. Celtech Plastics
BACKGROUND
1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 30, 2010.
2On November 3, 2010, the Tribunal issued a Notice of Application to the respondents. The respondents were advised that a Response must be filed with the Tribunal not later than December 8, 2010. The respondents did not file a Response as directed.
3In an Interim Decision, dated January 7, 2011, 2011 HRTO 62, the Tribunal noted that neither respondent filed a Response to the Application. The Tribunal directed the respondents to file a Response within 10 days of the date of the Interim Decision, together with an explanation of why a Response was not filed in accordance with the Notice of Application. The Tribunal advised the respondents that if a Response was not received, the Tribunal might proceed without further notice to the respondents and might take and or all of the steps set out in Rule 5.5 of the Tribunal’s Rules of Practice, which provides 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.
4Subsequent to the Interim Decision no Response was received from the respondents.
5A Case Assessment Direction (“CAD”) was issued by the Tribunal on October 5, 2011, in which the respondents were directed to file a Response within 10 days of the date of the CAD, together with an explanation of why a Response was not filed in accordance with the Notice of Application. The CAD also warned the respondents that if a Response was not received within 10 days, the Tribunal might 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.
6As of the date of this Interim Decision nothing has been received from the respondents, nor has the Tribunal’s correspondence 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.
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, 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 decisions in Clements v. Duke and Duchess, 2011 HRTO 1438 and Genevieve v. 1705129 Ontario Limited, 2011 HRTO 2130.
9It has now been more than nine weeks since the Response and accompanying explanation for the delay were due from the respondents pursuant to the CAD. Nothing has been received from the respondents. I am satisfied that the respondents have received notice of the Application, the Tribunal’s Interim Decision and subsequent CAD directing them to file a Response. It appears that the respondents refuse or have chosen not to participate in these proceedings, notwithstanding repeated warnings of the implications of Rule 5.5.
10The Tribunal will proceed without the participation of the respondents, and I deem the respondents to have waived their 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 he may wish the Tribunal to consider. He is also directed to advise the Tribunal whether he wishes to provide oral evidence or make oral submissions in support of his Application.
ORDER
12I order the following:
i) The respondents 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;
ii) Within four weeks of this Interim Decision, the applicant may submit any additional documents or materials he wishes the Tribunal to consider in deciding this Application, and the applicant should advise the Tribunal whether or not he wishes to make oral submissions via teleconference call before the Tribunal finally determines the Application; and
iii) If the applicant advises that he does not have documentary materials to submit, or that he 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.
Dated at Toronto this 23rd day of December, 2011.
”signed by”____________
Alan G. Smith
Member