McDowell v. 1276458 Ontario Inc. o/a A Dark Horse, 2012 HRTO 2342

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jason McDowell

Applicant

-and-

1276458 Ontario Inc. o/a A Dark Horse

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: December 13, 2012

Citation: 2012 HRTO 2342

Indexed as: McDowell v. 1276458 Ontario Inc. o/a A Dark Horse

INTRODUCTION

1The purpose of this Interim Decision is to address the respondent’s ongoing failure to file a Response to the Application, and to provide directions to the applicant with respect to disposing of his Application.

BACKGROUND

2On May 16, 2012, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), which alleged that the respondent discriminated against him with respect to employment because of his family status. Specifically, he alleged that the respondent terminated his employment because he had to stay home from work for one day to take care of his children as a result of his girlfriend being unexpectedly hospitalized.

3On May 25, 2012, the Tribunal issued a Notice of Application and delivered the Application to the respondent by regular mail at the address provided by the applicant. The Notice directed the respondent to file a Response with the Tribunal no later than thirty-five (35) days from the date of the Notice. The Notice also warned the respondent that if it failed to respond to the Application, the Tribunal may deem it to have accepted all of the allegations in the Application, proceed to deal with the Application without further notice to it, deem it to have waived all rights with respect to further notice or participation in the proceeding, and decide the matter based only on the material before the Tribunal.

4The Tribunal subsequently learned that its Notice of Application may not have reached the respondent as the postal code reflected in the address line was incorrect. Accordingly, by way of letter dated July 5, 2012, the Tribunal re-issued its Notice of Application to the respondent.

5On September 11, 2012, the Tribunal issued an Interim Decision, 2012 HRTO 1718, and delivered it to the respondent by regular mail and courier. The Interim Decision had the following warning at paras. 5 and 7:

An application to the Tribunal starts a legal proceeding. A finding that a violation of the Code has occurred may lead to various orders, including monetary compensation, other forms of restitution to the applicant, and orders to take action to promote compliance with the Code. Failure to file a response or participate in a Tribunal proceeding may lead to orders against individual and corporate respondents without their participation. The respondent's attention is drawn 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.

If the respondent wishes to participate in this proceeding, it shall file a Response with the Tribunal within 14 days of the date of this Interim Decision, together with an explanation of why the Response was not filed in accordance with the Notice of Application. If a Response is 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.

6On September 21, 2012, the Tribunal received an e-mail from Joe Salib, who identified himself as the accountant for the respondent. He stated that he had received the Tribunal’s Interim Decision, and was instructed by his client to inquire about the matter because his client was not aware of a proceeding before the Tribunal. He requested that the Tribunal forward him or his client any information that would shed light on the process and the nature of the claim.

7On the same day, the Tribunal sent an e-mail in response to Mr. Salib, which attached copies of the Application and the Notice of Application, and informed him that the Response form could be found on the Tribunal’s website.

8On October 1, 2012, the Tribunal sent Mr. Salib a further e-mail, which informed him that if a Response was not filed immediately, the Tribunal may proceed without further notice to the respondent, and take any or all of the steps set out in Rule 5.5. The e-mail also informed him that if the respondent required additional time to file its Response, it should make a request in writing to the Tribunal’s Registrar immediately.

9To date, the respondent had not filed a Response, or otherwise communicated with the Tribunal.

CONSEQUENCE OF RESPONDENT’S FAILURE TO FILE A RESPONSE AND COMPLY WITH TRIBUNAL’S RULES AND DIRECTIONS

10In Kearns v. 1327827 Ontario, 2009 HRTO 457, at paras. 11-14, the Tribunal set out the consequence for failing to file a Response and comply with the Tribunal’s Rules and directions:

The Code is an important public statute which enshrines our most basic and fundamental rights and freedoms. The enforcement procedures in the Code are equally important, since without an effective means of claiming a violation of a right, and seeking redress where a violation is found, those fundamental human rights would have little meaning.

The procedures established by the Tribunal’s Rules provide a mechanism to resolve disputes arising under the Code fairly and expeditiously. An individual who believes his or her rights have been infringed may bring an Application. That Application must be complete and set out the allegations which, in the applicant’s view, constitute a violation of the Code. Before serving an Application on the person or organization named as a respondent, the Tribunal will review the Application to ensure that it is complete and that it appears to be within the jurisdiction of the Code.

Once served with an Application, if the respondent wishes to participate and defend against the claim made by the applicant, the respondent has only to file a Response. The Tribunal provides a respondent with clear notice of what is required, and has prepared a Guide which assists a respondent in completing its Response. The Response also provides a respondent with an opportunity to indicate which facts or allegations in the Application are agreed to, and which are disputed.

A respondent who refuses, or chooses not to file a Response should not be able to frustrate the objects of the Code, and the applicant’s right to assert a claim and seek a timely determination of that claim. Section 40 of the Code requires the Tribunal to dispose of Applications in a way which will provide for “a fair, just and expeditious resolution of the merits of the application.” Where no Response is filed, in order to fulfill this statutory mandate, the Tribunal will proceed to determine the Application in the absence of the respondent. In all but the rarest of cases, 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).

11Based on the above sequence of events, I am satisfied that the respondent received notice of the Application, but is refusing or choosing not to participate in this proceeding.

12The consequence of the respondent’s failure to file a Response and comply with the Tribunal’s Rules and directions is that the Tribunal deems it to have accepted all of the allegations in the Application, and to have waived all rights with respect to further notice or participation in this proceeding.

DIRECTIONS

13Subsection 43(2) of the Code and Rule 3.5 of the Tribunal’s Rules provide that an Application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions. Accordingly, unless the applicant waives his right to make oral submissions, the Tribunal shall schedule a half-day hearing.

14The applicant is directed to address the following in any further written or oral submissions that he decides to make. The onus is on the applicant to establish on a balance of probabilities that a violation of the Code has occurred. The Tribunal’s decision to deem the respondent to have accepted all of the allegations set out in the Application does not mean that findings of discrimination have been or will be made. In Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, the Supreme Court of Canada defined discrimination as follows at pp. 174-75:

Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

15Based on my review, the Application raises the following issue with respect to liability:

(a) Did the respondent discriminate against the applicant on the basis of family status when it terminated his employment because he stayed home from work for one day to take care of his children as a result of his girlfriend being unexpectedly hospitalized?

16The Tribunal’s remedial powers are set out in subsection 45.2 of the Code, which provides:

(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

17Based on my review, the Application raises the following issues with respect to remedy:

(a) Is the applicant entitled to compensation for loss of income incurred as a result of the respondent’s termination of his employment?

(b) Is the applicant entitled to compensation for injury to dignity, feelings and self-respect resulting from the discrimination?

(c) Should the Tribunal direct the respondent to do anything else to promote compliance with the Code?

18The Ontario Court of Appeal has held that the purpose of the compensation for loss of income is to restore the applicant as far as is reasonably possible to the position that the applicant would have been in had the discriminatory act not occurred. See Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998), 1998 CanLII 17685 (ON CA), 35 C.H.R.R. D/477 (Ont. C.A.) and Piazza v. Airport Taxi Cab (Malton) Assn. (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.).

19With respect to compensation for injury to dignity, feelings and self-respect, the Divisional Court has held that humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the applicant; the experience of victimization; the vulnerability of the applicant; and the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649, at para. 153.

ORDER

20The Tribunal therefore makes the following orders:

(a) The respondent is deemed to have accepted all of the allegations set out in the Application.

(b) The respondent is deemed to have waived all rights with respect to further notice or participation in this proceeding.

(c) Within 21 days of the date of this Interim Decision, the applicant shall file any further written submissions and/or documents that he wants the Tribunal to consider in deciding this Application, and inform the Tribunal if he wants to attend a hearing.

(d) If the applicant informs the Tribunal that she does not want to attend a hearing, the Tribunal will proceed to finally determine the Application, including deciding the appropriate remedy, based on the materials before the Tribunal that the applicant has filed.

(e) If the applicant wants to attend a hearing, the Tribunal’s Registrar will schedule a half-day hearing.

21I am not seized of this matter.