HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Seut Iu
Applicant
-and-
Markham Marble and Yeung Cho Fan
Respondents
INTERIM DECISION
Adjudicator: Brian Eyolfson
Date: March 29, 2011
Citation: 2011 HRTO 602
Indexed as: Iu v. Markham Marble
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 28, 2010. The purpose of this Interim Decision is to address the respondents’ failure to provide a Response to the Application.
2On October 8, 2010, the Tribunal issued a Notice of Application and delivered the Application to the respondents. The Notice was sent to Yeung Cho Fan, who was listed in the Application as both an individual respondent and the contact person and owner of the organizational respondent. The respondents were advised that a Response must be filed with the Tribunal no later than November 15, 2010.
3On December 10, 2009, the Tribunal issued an Interim Decision, 2010 HRTO 2458, as the respondents had not filed a Response, nor had the Tribunal’s correspondence been returned. The Interim Decision noted that where a respondent has failed to respond to an application, and pursuant to Rule 5.5 of the Tribunal’s Rules of Procedure, the Tribunal may deem the respondent to have accepted all of the allegations in the application and proceed to deal with the application without further notice to the respondent. The Tribunal ordered the respondents to file a Response within ten days from the date of the Interim Decision, together with an explanation of why the Response was not filed earlier in accordance with the Notice of Application, if they wished to participate in these proceedings. The Interim Decision indicated that if a Response was not received by that date, the Tribunal may proceed without further notice to the respondents, and may take any or all of the steps set out in Rule 5.5.
4To date, the respondents have not filed a Response. The Interim Decision was sent to the respondents by regular mail, courier, fax and email. None of the Tribunal’s correspondence to the respondents has been returned.
5In 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 that the respondent has received notice, the Tribunal will proceed to determine the Application in the absence of the respondent. In such circumstances, the Tribunal will deem the respondent to have waived its right to participate, pursuant to Rule 5.5(c), and deem the respondent to have accepted all of the allegations set out in the Application, pursuant to Rule 5.5(a).
6It has now been more than three months since the respondents’ Response and accompanying explanation for the delay were due. The respondents have failed to file a Response, despite having received the above-referenced Interim Decision and having been provided with the Notice and Application. I am satisfied that the respondents have received notice of the Application and notice of the Tribunal’s Order directing them to file a Response. It appears that the respondents refuse, or have chosen not to participate in these proceedings, notwithstanding notice of the implications of Rule 5.5. As a result, the Tribunal will proceed without the participation of the respondents and will deem the respondents to have accepted all of the facts alleged in the Application and to have waived any right to participate in these proceedings.
7The applicant will be provided with an opportunity to file any documents or materials, including written submissions, she may wish the Tribunal to consider. In addition, the applicant will be provided with an opportunity to make oral submissions before the Tribunal finally determines the Application.
8In the circumstances, the Tribunal makes the following Order:
The respondents are deemed to have accepted all of the allegations set out in the Application;
The respondents are deemed to have waived all rights to notice or participation in these proceedings;
Within 14 days of that date of this Interim Decision, the applicant should advise the Tribunal’s Registrar, in writing, whether she prefers to have a hearing in person or by teleconference. If the applicant does not indicate her preference within 14 days, the Tribunal will schedule a hearing by teleconference; and
Within 21 days of the date of this Interim Decision, the applicant may submit any additional documents or materials, including written submissions, she wishes the Tribunal to consider in deciding this Application.
9I am not seized of this matter.
Dated at Toronto, this 29^th^ day of March, 2011.
”signed by”____________
Brian Eyolfson
Vice-chair