Ann-Marie Palmer v. Balsam Lodge, 2012 HRTO 384

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ann-Marie Palmer

Applicant

-and-

Balsam Lodge

Respondent

Interim Decision

Adjudicator: Naomi Overend

Date: February 23, 2012

Citation: 2012 HRTO 384

Indexed As: Palmer v. Balsam Lodge

1This Application, which was filed on August 22, 2011, alleges discrimination on the basis of disability in employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). On September 15, 2011, the Tribunal issued the Notice of Application to the respondent in which it directed the respondent to file a Response no later than October 20, 2011. No Response was filed.

2In an Interim Decision, 2012 HRTO 77, issued on January 13, 2012, the respondent was ordered to file its Response within 10 days of the date of the Interim Decision together with an explanation of why its Response was not filed in accordance with the Notice of Application.

3As of the date of this Interim Decision, the respondent has not filed a Response or otherwise communicated with the Tribunal, nor has the Tribunal’s correspondence been returned. This Interim Decision is to deal with the respondent’s failure to file a Response.

4An 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 made against individual and corporate respondents without their participation. Rule 5.5 of the Tribunal’s Rules of Procedure 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.

5In Kearns v. 1327827 Ontario, 2009 HRTO 457, the Tribunal set out its approach, and rationale for that approach, in circumstances where a respondent fails to file a Response after having been cautioned. 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.

6At paragraphs 11-14 of Kearns, 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.

7It has now been more than three weeks since the Response and accompanying explanation for the delay were due. I am satisfied that the respondnet has received notice of the Application and notice of the Tribunal’s Order directing it to file a Response.

8It appears that the respondent refuses, or has chosen not to participate in these proceedings, notwithstanding notice of the implications of Rule 5.5. In the circumstances, pursuant to Rules 5.5 (a), (b) and (c), the Tribunal orders that the respondent is deemed (1) to have accepted all the allegations in the Application; and (2) to have waived all rights with respect to further notice or participation in the proceeding.

9The Tribunal will proceed to an in-person hearing without the participation of the respondent.

10I am not seized.