Lacey v. Dove Foods Limited, 2013 HRTO 1694

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janelle Lacey

Applicant

-and-

Dove Foods Limited, Peter Gogou and Evan Gogou

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: October 8, 2013

Citation: 2013 HRTO 1694

Indexed as: Lacey v. Dove Foods Limited

1The applicant filed this Application on May 22, 2013 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal with respect to employment on the basis of disability and sex (pregnancy).

2The respondents have failed to file Responses, notwithstanding having been issued a Notice of the Application on May 30, 2013 and having been notified by way of Interim Decision 2013 HRTO 1260 that their Responses were overdue. In that Interim Decision, the Tribunal expressly noted the consequences for failure to respond as set out in Rule 5.5 of the Tribunal’s Rules of Procedure. The Interim Decision stated that if a Response was not received within 14 days, the Tribunal could proceed without further notice to the respondents and may take any or all of the steps set out in Rule 5.5. A copy of the Interim Decision was sent to the respondents by regular mail and courier.

3Neither the May 2013 Notice of Application nor the July 2013 Interim Decision were returned to the Tribunal as undeliverable.

DECISION

4The Tribunal will proceed without the participation of the respondents.

5In 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).

6I am satisfied the respondents have received notice of the Application and the decision of the Tribunal directing then to file their Responses. The respondents refuse or have chosen not to participate in these proceedings.

7In these circumstances, the Tribunal orders that the respondents are deemed to have waived all rights with respect to further notice or participation in the proceeding. The Tribunal will proceed without the participation of the respondents and deems the respondents to have waived their right to participate pursuant to Rule 5.5(c).

8Before the Tribunal finally determines the Application, the applicant will be provided an opportunity to indicate whether she wishes to file further materials and/or produce oral evidence and make oral submissions.

9As such, the Tribunal will schedule a one-hour conference call to hear from the applicant regarding whether or not the applicant she wishes to proceed in writing by filing further materials or wishes to call oral evidence and make oral submissions.

10The purpose of the teleconference call is strictly to determine next steps with respect to how the hearing will proceed and what, if any, further evidence the applicant intends to produce. No witnesses or legal submissions will be heard during the teleconference.

11The Tribunal makes the following orders:

i. The respondent is deemed to have waived all rights to notice or participation in these proceedings.

ii. The applicant shall file the materials set out in para. 10 above within four weeks of the date of this Interim Decision; and

iii. The Registrar will issue a Notice of Case Management Conference Call confirming the details of the one-hour teleconference.

12I am not seized.