Messina v. International Fence and Railings Inc., 2013 HRTO 1076

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Altivo Heber Moraes Messina

Applicant

-and-

International Fence and Railings Inc.

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: June 17, 2013

Citation: 2013 HRTO 1076

Indexed as: Messina v. International Fence and Railings Inc.

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. The respondent has failed to file a Response, notwithstanding having received notice of the Application. As a result, the Tribunal will proceed without the participation of the respondent.

BACKGROUND

2The Application was filed on February 5, 2013 and sent to the respondent on March 19, 2013. Because the respondent did not file a Response within 35 days as required by the Tribunal’s Rules, the Tribunal issued a “no response decision” 2013 HRTO 828 directing that a response be filed by April 24, 2013 and advising of the consequences for failure to respond. The respondent did not file a Response as required by the Rules or as directed in the Interim Decision.

DECISION

3In Kearns v. 1327827 Ontario, 2009 HRTO 457, at paragraphs 11 – 14, 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:

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).

4I am satisfied the respondent has received notice of the Application and the decision of the Tribunal directing it to file its Response. The respondent refuses or has chosen not to participate in these proceedings.

5The Tribunal went on to explain that, for several reasons, it will not generally make an order under Rule 5.5(d), without first providing the applicant an opportunity to indicate whether he or she wishes to file further materials and/or make oral submissions.

6Whether or not the applicant wishes to make oral submissions, the following documentary material should be provided to the Tribunal:

• a statement signed by the applicant setting out in full all the facts upon which the applicant relies, or confirmation that the summary of facts in the Application is complete and reflects the evidence that the applicant wishes to give;
• any legal submissions the applicant wishes to make in writing;
• a calculation of the applicant’s loss of income, including any documents (e.g., pay slips, T4s), which specifies any times when the applicant believes he would have not been able to work due to injury, illness, personal circumstances or lack of work;
• amount requested for injury to the applicant’s dignity, feelings or self-respect, and the reasons for that amount; and
• request for any other order the applicant wishes the Tribunal to make, with reasons for that request.

ORDER

7For the reasons set out above, I make the following order:

1. The respondent is deemed to have accepted all of the allegations set out in the Application; and
2. The respondent is deemed to have waived all rights to notice or participation in these proceedings.

DIRECTIONS

8In accordance with paragraphs 5 - 6, I make the following directions with respect to next steps in this Application:

1. The applicant shall file the materials set out in para. 6 above within four weeks of the date of this Interim Decision;
2. If the applicant also wishes to make oral submissions, she/he shall advise the Registrar within four weeks of this Interim Decision and the Register will issue a Notice of Hearing confirming the details of the hearing.

9If, within four weeks of this decision, the applicant does not file further materials or advise the Registrar they wish to make oral submissions, then the Application will be decided based on all of the submissions and material filed with the Tribunal to date.

10I am not seized.