Human Rights Tribunal of Ontario
B E T W E E N:
A.B. Applicant
-and-
Havcare Investments Inc. and Marian Linton Respondents
Interim Decision
Adjudicator: Naomi Overend Date: February 27, 2012 Citation: 2012 HRTO 409 Indexed As: A.B. v. Havcare Investments Inc.
Reasons for Decision
1This Application, which was filed on March 7, 2011, alleges discrimination on the basis of age in housing by the individual respondent Marian Linton contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code"). On August 12, 2011, the Tribunal issued Interim Decision 2011 HRTO 1510 (the "August 2011 Interim Decision"), adding Havcare Investments Inc. ("Havcare") as a respondent. In the August 2011 Interim Decision, the Tribunal directed the two respondents, Marian Linton and Havcare, to file Responses within 35 days.
2On November 28, 2011, the Tribunal accepted the Response filed by Marian Linton. While it was faxed to the Tribunal from a fax number identified as "Havcare", it does not clearly identify whether the Response was also being filed on behalf of Havcare.
3In the second Interim Decision, 2012 HRTO 100, issued on January 13, 2012, Marion Linton was directed to advise the Tribunal whether her Response was also filed on behalf of Havcare. In the event that it was not, Havcare was ordered to file its Response within 21 days of the date of this Interim Decision together with an explanation of why its Response was not filed in accordance with the timelines set out in the August 2011 Interim Decision.
4As of the date of this Interim Decision, Havcare 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 Havcare Investments Inc.'s failure to file a Response.
5An 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. 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.
6In 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.
7At 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.
8It has now been more than two weeks since the Response and accompanying explanation for the delay were due. I am satisfied that Havcare has received notice of the Application and notice of the Tribunal's Order directing it to file a Response.
9It appears that Havcare refuses, or has chosen not to participate in these proceedings, notwithstanding notice of the implications of Rule 5.5. In the circumstances, the Tribunal orders that Havcare is deemed to have waived all rights with respect to further notice or participation in the proceeding pursuant to Rules 5.5(b) and (c). The Tribunal will proceed to an in-person hearing without the participation of the respondent Havcare.
10I am not seized.
Dated at Toronto, this 27th day of February, 2012.
"signed by"
___________________________________
Naomi Overend Vice-chair