HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ann-Marie Dunford
Applicant
-and-
CMM Group
Respondent
INTERIM DECISION
Adjudicator: Mary Truemner
Indexed as: Dunford v. CMM Group
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on 25 May 2011. The purpose of this Interim Decision is to address the respondent’s failure to provide a Response to the Application.
2On June 29, 2011, the Tribunal issued a Notice of Application and delivered the Application to the respondent. The Notice was mailed to the address listed on the Applicant’s pay stub. The respondent was advised that a Response must be filed with the Tribunal no later than August 3, 2011. There was no Response filed by the respondent nor was the Tribunal’s correspondence to it returned.
3On August 31, 2011 the Tribunal issued a second Notice of Application to the respondent in which it directed that a Response to the Application must be filed with the Tribunal not later than October 5, 2011. The Notice was mailed to an alternate address provided by the applicant. This alternate address is the business location where the applicant was employed by the respondent.
4On November 8, 2011, the Tribunal issued an Interim Decision, 2011 HRTO 2023, as the respondent had not filed a Response, nor had the Tribunal’s correspondence been returned. The Interim Decision noted that where a respondent has failed to respond to an application, then, pursuant to Rule 5.5 of the Tribunal’s Rules of Procedure, 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 Tribunal ordered the respondent to file a Response within ten days from the date of the Interim Decision, together with an explanation of why the Response was not filed earlier in accordance with the Notice of Application, if it wished to participate in these proceedings. The Interim Decision indicated that if a Response was not received by that date, 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.
5To date, the respondent has not filed a Response. The Interim Decision was sent to the respondent by regular mail and courier. None of the Tribunal’s correspondence to the respondent has been returned, and a signature for the documents sent by courier was obtained.
6In Kearns v. 1327827 Ontario, 2009 HRTO 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. Where no Response is filed and the Tribunal is satisfied that 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).
7It has now been more than three months since the respondent’s Response and accompanying explanation for the delay were due. The respondent has failed to file a Response, despite having received the above-referenced Interim Decision and having been provided with the Notice and Application. I am satisfied that the respondent has received notice of the Application and the Tribunal’s Interim Decision directing it to file a Response. It appears that the respondent refuses, or has chosen not to participate in these proceedings, notwithstanding notice of the implications of Rule 5.5. As a result, the Tribunal will proceed without the participation of the respondent and will deem the respondent to have accepted all of the facts alleged in the Application and to have waived any right to participate in these proceedings.
8The applicant will be provided with an opportunity to file any documents or materials, including written submissions, she may wish the Tribunal to consider. In addition, the applicant will be provided with an opportunity to make oral submissions before the Tribunal finally determines the Application.
9In the circumstances, the Tribunal makes the following Order:
The respondent is deemed to have accepted all of the allegations set out in the Application;
The respondent is deemed to have waived all rights to notice or participation in these proceedings;
Within 14 days of that date of this Interim Decision, the applicant should advise the Tribunal’s Registrar, in writing, whether she prefers to have a hearing in person or by teleconference. If the applicant does not indicate her preference within 14 days, the Tribunal will schedule a hearing by teleconference; and
Within 21 days of the date of this Interim Decision, the applicant may submit any additional documents or materials, including written submissions, she wishes the Tribunal to consider in deciding this Application.
10I am not seized of this matter.
Dated at Toronto, this 2nd day of March, 2012.
”signed by”
Mary Truemner
Vice-chair