Lynn Coscina v. 2253308 Ontario Inc. c.o.b. as Halton School of Equitation, 2011 HRTO 430

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lynn Coscina

Applicant

-and-

2253308 Ontario Inc. c.o.b. as Halton School of Equitation

Respondent

INTERIM decision

Adjudicator: Ena Chadha

Date: February 28, 2011

Citation: 2011 HRTO 430

Indexed as: Coscina v. 2253308 Ontario

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 August 24, 2010, alleging discrimination with respect to employment on the basis of disability.

2On November 4, 2010, the Tribunal delivered the Application to the respondent Halton School of Equitation (“Halton School”). The Notice of Application directed the Halton School that a Response must be filed with the Tribunal by December 9, 2010. No Response was received and the original Notice of Application was not returned.

3Consequently, the Tribunal issued Interim Decision 2011 HRTO 238, noting Halton School’s failure to file a Response and providing it ten days to file a Response together with an explanation of why the Response was not filed in accordance with the original Notice of Application.

4The Interim Decision explained that 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.

5The Interim Decision further stated that if the Response was not received, the Tribunal might proceed without further notice to the respondent and it might take any or all of the steps set out in Rule 5.5 of the Tribunal’s Rules of Procedure. Pursuant to the order set out in that Interim Decision, a copy of that Interim Decision was sent to the Halton School by regular mail, email and courier delivery.

6As of the date of this Interim Decision, Halton School has not filed a Response, nor further corresponded or communicated with the Tribunal.

DECISION

7Neither the Notice of Application, nor the Interim Decision, have been returned to the Tribunal as undeliverable.

8The applicant has confirmed that the correct address has been provided for the Halton School. The applicant further advises that Halton School is registered as a corporation under business number 2253308 Ontario Inc. In light of this information about the business’s legal registration, the style of cause is amended to reflect the respondent is “2253308 Ontario Inc. carrying on business as Halton School of Equitation”.

9In 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.

10It has now been more than one month since the Response and accompanying explanation for the delay were due. No Response has been received from the Halton School, despite having received notice of the Application and an Interim Decision regarding this matter. I am satisfied that Halton School 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. In the circumstances, the Tribunal orders that Halton School is deemed to have waived all rights with respect to further notice or participation in the proceeding.

11The Tribunal will proceed without the participation of Halton School and deems the respondent to have waived its right to participate pursuant to Rule 5.5(c) and further deems the respondent to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a).

12Before the Tribunal finally determines the Application, the applicant will be provided an opportunity 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.

13As such, the following is ordered:

i) The respondent is 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;

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.

14I am not seized of this matter.