Miki Shinozaki v. Hotlomi Spa, 2012 HRTO 1048

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Miki Shinozaki

Applicant

-and-

Hotlomi Spa

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: May 25, 2012

Citation: 2012 HRTO 1048

Indexed as: Shinozaki v. Hotlomi Spa

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 February 13, 2012.

2On March 15, 2012, the Tribunal issued a Notice of Application to the respondent in which it directed that a Response to the Application be filed with the Tribunal not later than April 19, 2012. The respondent did not respond and correspondence sent to the respondent by regular mail was not returned to the Tribunal.

3In Interim Decision 2012 HRTO 890, the Tribunal drew the respondent’s attention to Rule 5.5 of the Tribunal’s Rules of Procedure which reads 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.

4The Tribunal sent a copy of the Interim Decision to the respondent by regular mail, courier, and email. The Tribunal directed the respondent to 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 Tribunal Directed as well that if a Response was not received, the Tribunal may proceed without further notice to the respondent and may take any or all of the steps set out in Rule 5.5.

5The correspondence sent to the respondent by courier was returned to the Tribunal. The copy sent by mail was not returned and no Response has been received from the respondent. The time set for compliance with the Tribunal’s Directions in the Interim Decision has passed.

6In 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. 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.

7Accordingly, the respondent is deemed to have waived all rights with respect to further notice or participation in the proceeding. The Tribunal will proceed without the participation of the respondent. The respondent is deemed 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).

DECISION

8The Tribunal makes the following Order:

1. The respondent is deemed to have waived all rights to notice or participation in these proceedings and is further deemed to have accepted all of the allegations set out in the Application;

2. The applicant is directed to submit, within 30 days of this Interim Decision, any additional materials, evidence and written submissions she wishes the Tribunal to consider in deciding this Application;

3. The applicant is also required to advise the Tribunal in writing, within 30 days of this Interim Decision, as to whether or not she wishes to make oral submissions via conference call before the Tribunal finally determines the Application;

4. If the applicant advises that she does not wish to make oral submissions, the Tribunal will finally determine the Application, including deciding the appropriate remedy, based only on the materials before the Tribunal that have been filed by the applicant; and

5. If the applicant advises that she wishes to make oral submissions in addition to the submission of documentary materials/submissions, the Tribunal will schedule a one hour conference call.

9I am not seized of this case.