C.C. v. [….] Restaurant, 2013 HRTO 1730

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.C.

Applicant

-and-

J.L. o/a [….] Restaurant, C.L. and J.L.

Respondents

A N D B E T W E E N:

J.C.

Applicant

-and-

J.L. o/a [….] Restaurant, C.L. and J.L.

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: October 11, 2013

Citation: 2013 HRTO 1730

Indexed as: C.C. v. [….] Restaurant

1These are two separate Applications both filed on June 7, 2013 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

background

2The applicants are related. C.C., whose Application is 2013-14655-I, is the mother of J.C., whose Application is 2013-14656-I. Both Applications pertain to C.C’s use of a service animal at the restaurant, J.L. o/a [….] Restaurant, C.L. and J.L. , where J.C. worked. C.L. and J.L. are owners of the restaurant.

3On June 18, 2013, the Tribunal issued a Notice of Application (“the Notice”) to the respondents in which it directed that a Response to each Application must be filed with the Tribunal no later than July 24, 2013. The Notice was sent by regular mail and was not returned to the Tribunal by Canada Post as being undeliverable. The respondents did not file Responses.

4The Tribunal issued an Interim Decision dated August 21, 2013 (2013 HRTO 1428) in which the Tribunal determined that the Applications should be heard together. It also noted that the respondents had not filed a Response to either Application, warned the respondents about the consequences of not filing a Response, and directed the respondents to file Responses to the Applications with 14 days from the date of the Interim Decision, along with an explanation of why the Responses were not filed in accordance with the Notice. The Tribunal stated, at para. 7, that if the respondents did not file Responses, the Tribunal may proceed without further notice to the respondents and may take any or all of the steps set out in Rule 5.5.

5The Interim Decision was sent to the respondents by regular mail and courier. Both were returned, with the reason on the regular mail correspondence stated as “moved” and “return to sender”. The Tribunal then contacted the applicants’ counsel to advise that the respondents’ mail had been returned, their telephone number was no longer in service, and requested a current address for the respondents. The applicants provided a new address.

6The Tribunal sent a Registrar’s letter, dated September 13, 2013, to the respondents at the new address by regular mail (“the September letter”). The Applications, the Notice, and the Interim Decision were also enclosed. This has not been returned to the Tribunal as being undeliverable. In the September letter, the Tribunal directed the respondents to file Responses by September 30, 2013, together with an explanation of why the Responses were not filed in accordance with the Notices. The respondents have not complied with these directions, have not filed Responses and have not otherwise communicated with the Tribunal.

decision

7In Kearns v. 1327827 Ontario, 2009 HRTO 457, at paras. 11 to 14, the Tribunal set out its approach in circumstances where a respondent fails to file a Response after having been cautioned by the Tribunal about the consequences of not doing so, and the rationale for that approach:

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 rights 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).

8I am satisfied that the respondents have received notice of the Applications and the Tribunal’s Interim Decision them to file their Responses. The respondents refuse or have chosen not to participate in these proceedings.

order

9For the reasons set out above, I make the following order:

1. The respondents are deemed to have accepted all of the allegations set out in the Application; and

2. The respondents are deemed to have waived all rights to notice or participation in these proceedings.

10Therefore, the Applications will proceed without further notice to the respondents.

next steps

11The Tribunal went on in Kearns, above, to explain that, for several reasons, it will not generally make an order under Rule 5.5(d) (which permits the Tribunal to make a decision based upon the material filed at that point), without first providing an applicant with an opportunity to indicate whether he or she wishes to file further materials and/or make oral submissions.

12Accordingly, the Tribunal will schedule a one hour case management teleconference call to discuss the following:

a. Do the applicants wish to have an oral hearing or have the Tribunal decide the Application based upon the written materials filed?

b. Do the applicants intend to call witnesses and in what format?

c. What documents do the applicants intend to rely upon and in what format?

d. What are the issues raised in the Applications?

e. What remedies are the applicants seeking from the Tribunal if the Tribunal finds that harassment or discrimination occurred, , and what, if, any evidence, do the applicants intend to rely upon in support of these remedies?

f. Do the applicants plan to make any legal submissions and do the applicants plan to rely upon any case law?

g. A timetable for the applicants to file the items set out in points a. to f. above, will be discussed and set during the case management teleconference call; and

h. If the applicants are seeking an oral hearing, the availability of the applicants and their witnesses will also be canvassed to schedule a hearing date so the applicants should have their calendars present during the case management teleconference call.

13The Tribunal will issue to the applicants a notice of case management teleconference call setting out the date and time of the call and providing call-in instructions. There will be no evidence called during the case management teleconference call, the applicants are not required to file any materials with the Tribunal prior to the case management teleconference, and are not expected to have their legal submissions and/or case law ready for the teleconference call.

14I am not seized with these matters.