HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lina Rocha

Applicant

-and-

Pardons and Waivers of Canada

Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: July 31, 2012

Citation: 2012 HRTO 1490

Indexed as: Rocha v. Pardons and Waivers of Canada

[1] On July 13, 2011, the applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in respect of employment on the basis of age.

[2] On October 25, 2011, the Tribunal issued a Notice of Application (“Notice”) to the respondent in which it directed the respondent that a Response to the Application must be filed with the Tribunal not later than November 29, 2011.

[3] On March 27, 2012, the Tribunal issued a Case Assessment Direction (a “CAD”) regarding the respondent’s failure to file a Response to the Application. The CAD was delivered to the respondent by courier and email.

[4] The CAD noted that, in the circumstances where a respondent has failed to respond to an Application, 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 respondent’s attention was drawn to Rule 5.5 of the Tribunal’s Rules of Procedure (“Rules”) 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.

[5] The CAD ordered the respondent to file a Response within 35 days of the date of the CAD and indicated that if a Response was not received by that date, the Tribunal would proceed without further notice to the respondent, and may take any or all of the other steps set out in Rule 5.5.

[6] On May 28, 2012, the Tribunal received a phone call and email request for a copy of the file from Richard Breslin, a person indicating that he would be acting for the respondent in this matter. In his email, Mr. Breslin sought an extension of the 35 day deadline for filing a Response.

[7] A copy of the file was sent by email to Mr. Breslin on April 11, 2012 by the Tribunal, along with an email that informed him that if he required an extension of the deadline in the CAD, he should send an email the Registrar and copy the applicant.

[8] No further email has been received since April 11, 2012, and it has been over three months since the respondent’s representative was resent the Application file. The respondent has not filed a Response.

DECISION

[9] In Kearns v. 1327827 Ontario, [2009 HRTO 457](https://www.minicounsel.ca/hrto/2009/457), 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.

[10] The Tribunal in Kearns noted that 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. 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).

[11] It is now over three months since the Notice of Application was redelivered to the respondent. The Notice included a statement of “Important Information For the Respondents” advising the respondent that if it failed to respond to the Application, 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. It also provided contact information for the Tribunal and the Tribunal’s website, as well as the availability of the Tribunal’s Rules and Practice Directions. It is now well over three months since the Case Assessment Direction provided the respondent with another opportunity to file a Response and cautioned of the ramifications of failure to participate.

[12] The respondent has not filed a Response despite having received the Notice of the Application and a Case Assessment Direction ordering the respondent to file a Response. Neither the Notice of Application nor the Case Assessment Direction have been returned to the Tribunal as undeliverable and, in fact, a representative of the respondent was resent a copy of the Application file at his request.

[13] I am satisfied that the respondent 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 being alerted of the implications of Rule 5.5.

[14] In these circumstances, the Tribunal orders that 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 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).

[15] The applicant will be provided an opportunity to file any documents or materials she may wish the Tribunal to consider and will be provided an opportunity, unless this right is waived, to make oral submissions before the Tribunal finally determines the Application.

ORDER

[16] The Tribunal orders as follows:

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 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; and

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

17I am not seized of this matter.