Lisa Matthews v. Franco Venturato, 2012 HRTO 1433

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa Matthews

Applicant

-and-

Franco Venturato

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: July 23, 2012

Citation: 2012 HRTO 1433

Indexed as: Matthews v. Venturato

Introduction

1This is an Application filed on February 22, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex, including sexual harassment.

2On March 5, 2012, the Tribunal issued a Notice of Application to the respondent in which it directed that a Response to the Application must be filed with the Tribunal not later than April 10, 2012.

3On April 5, 2012, the Tribunal received e-mail correspondence from the respondent stating that he sought legal counsel and his legal counsel had asked him “to ask you for an extension of two weeks so that we can further review this case”. On April 12, 2012, the Tribunal granted the respondent’s request for an extension of time to file a Response to April 26, 2012.

4An Interim Decision, 2012 HRTO 1119, was issued by the Tribunal dated June 6, 2012. In the Interim Decision, 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.

5The Tribunal sent a copy of the Interim Decision to the respondent by regular mail and e-mail. 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.

6The correspondence sent to the respondent by mail and e-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.

7In 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.

8I am satisfied that the respondent has received notice of the Application and the procedure by which he was required to file a Response. Accordingly, 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 also deemed to have waived its right to participate pursuant to Rule 5.5(c) of the Tribunal’s Rules of Procedure and to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a).

DECISION

9The 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, including any evidence (documentary or otherwise) relating to any remedies that she is seeking;

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.

10I am not seized of this case.