HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Emma Clements
Applicant
-and-
Duke and Duchess, Billy Fatkin Junior and Sean Phillips
Respondents
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Clements v. Duke and Duchess
WRITTEN SUBMISSIONS
Emma Clements, Applicant
Self-represented
Introduction
1This is an Application filed 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 and sexual harassment. This matter is scheduled for hearing in Toronto on September 10 and 11, 2012.
2On August 2, 2011, the Tribunal issued Interim Decision 2011 HRTO 1438 (the “Interim Decision”), with respect to the respondent’s failure to file a Response which orders at paragraph 12:
As such, the following is ordered:
i) The respondents are 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.
3On August 15, 2011, the respondents filed an incomplete Response. The complete Response was filed on September 19, 2012 and sent to the applicant on September 26, 2011. On October 7, 2012, the applicant filed a detailed Reply.
4The matter was processed in the ordinary course by the Tribunal and a mediation was scheduled which was later cancelled because both parties could not agree to mediation, either via telephone conference or in person.
5On February 3, 2012, the Tribunal sent to the applicant and the respondents a Notice of Confirmation of Hearing.
6In a Case Assessment Direction dated August 2, 2012, the Tribunal directed the parties to file submissions on whether the Interim Decision should be reconsidered and whether the Tribunal should permit the respondents to participate at the hearing.
7The applicant filed submissions opposing the reconsideration of the Interim Decision on the basis that the respondents failed to adhere strictly to the deadlines imposed by the Tribunal and that the Interim Decision was fair and just.
8Though the respondents filed their hearing materials, they did not make any submissions on whether the Tribunal should reconsider the Interim Decision.
Decision
9I have considered the circumstances of this case and I find that it is appropriate to revisit the Interim Decision and to allow the respondents to participate at the hearing. The applicant has been in receipt of the respondent`s Response for almost ten months and has been able to file a very detailed Reply. As such, there is no prejudice to the applicant. Further, this Application has proceeded to hearing without any objection from the applicant. As such, it is appropriate that a hearing be convened to hear the evidence of all the parties.
Order
10The Tribunal Orders as follows:
a. The Tribunal will hear the merits of the Application at the in-person hearing scheduled in Toronto on September 10 and 11, 2012; and
b. The respondents are not deemed to have accepted the allegations in the Application and all parties will be allowed to fully participate at the hearing.
Dated at Toronto, this 14th day of August, 2012.
“signed by”
Geneviève Debané
Vice-chair