HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hillary Vipond
Applicant
-and-
Ben Wicks Pub and Bistro and David Doherty
Respondents
INTERIM DECISION
Adjudicator: Brian Eyolfson
Indexed as: Vipond v. Ben Wicks Pub and Bistro
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 June 16, 2009. The purpose of this Interim Decision is to address the respondents’ failure to provide Responses to the Application.
2On July 2, 2009, the Tribunal issued a Notice of Application and delivered the Application to the respondents. The Notice was sent to individual respondent, David Doherty, who was also described in the Application as a “part-owner and manager” of the organizational respondent, and listed as the contact person for the organizational respondent. The respondents were advised that a Response must be filed with the Tribunal not later than 35 days from July 2, 2009.
3In an earlier Interim Decision dated August 28, 2009, 2009 HRTO 1355, the Tribunal noted that the respondents had not filed Responses in accordance with the Notice of Application. The respondents were directed to file Responses by September 11, 2009, together with an explanation of why Responses were not filed in accordance with the deadline contained in the Notice of Application, if they wished to participate in this proceeding.
4On September 11, 2009, Mr. Doherty requested and was granted an extension of time until September 15, 2009, to file a Response to the Application. On September 18, 2009, Mr. Doherty filed an incomplete Response with the Tribunal.
5By letter dated September 23, 2009, the Tribunal advised the respondents that the Response received by Mr. Doherty was incomplete and could not be accepted. Mr. Doherty was directed to file a complete Response by October 12, 2009. On October 22, 2009, the Tribunal again wrote to the respondents, indicating that the Tribunal had not received a complete Response as directed in its previous correspondence, and the time for doing so had passed. The Tribunal directed that a complete Response be filed by October 29, 2009.
6On January 21, 2010, the Tribunal issued a Notice of Mediation, as both the applicant and the individual respondent indicated an interest in mediation. The Notice of Mediation confirmed that the Tribunal was in receipt of an incomplete Response from the individual respondent, Mr. Doherty, and that the Tribunal had not yet received a Response from the organizational respondent. The Notice of Mediation indicated that these issues would be addressed, if necessary, following the mediation. Ultimately, mediation did not take place.
7In a second Interim Decision dated November 4, 2011, 2011 HRTO 2002, the Tribunal confirmed that the individual respondent, Mr. Doherty, had not filed a complete Response to the Application, despite being directed to do so by the Tribunal on two earlier occasions. In addition, the Tribunal indicated that it had not received a Response on behalf of the organizational respondent. In both of its Interim Decisions, the Tribunal noted that where a respondent has failed to respond to an Application, and pursuant to Rule 5.5 of the Tribunal’s Rules of Procedure which was clearly set out in the Interim Decisions, 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.
8In its second Interim Decision, the Tribunal directed the individual respondent, Mr. Doherty, to file a complete Response with the Tribunal, within 10 days of the date of the Interim Decision, together with an explanation of why a complete Response was not filed as previously directed by the Tribunal, if he wished to participate in this proceeding. The Tribunal also directed the organizational respondent to file a Response with the Tribunal, within 10 days of the date of the Interim Decision, together with an explanation of why a Response was not filed in accordance with the Notice of Application, if it wished to participate in this proceeding. The Tribunal indicated that if a Response was not received from a respondent, in accordance with the Tribunal’s directions, the Tribunal may proceed without further notice to that respondent, and may take any or all of the steps set out in Rule 5.5.
9In 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).
10It has now been more than four months since the respondents’ Responses and accompanying explanation for the delay were last due. The respondents have failed to file Responses as directed, despite having received the above-referenced Interim Decisions and correspondence from the Tribunal. I am satisfied that the respondents have received notice of the Application and notice of the Tribunal’s directions regarding the filing of Responses. It appears that the respondents refuse, or have 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 respondents and will deem the respondents to have accepted all of the facts alleged in the Application and to have waived any right to participate in these proceedings.
11The 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.
12In the circumstances, the Tribunal makes the following Order:
The respondents are deemed to have accepted all of the allegations set out in the Application;
The respondents are deemed to have waived all rights to notice or participation in these proceedings;
Within 14 days of the 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.
13I am not seized of this matter.
Dated at Toronto, this 21st day of March, 2012.
“Signed by”
Brian Eyolfson
Vice-chair