Perez-Moreno v. Kulczycki, 2013 HRTO 29

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Oscar Perez-Moreno

Applicant

-and-

Danielle Kulczycki

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: January 7, 2013

Citation: 2013 HRTO 29

Indexed as: Perez-Moreno v. Kulczycki

Introduction

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment because of race, ancestry, place of origin, citizenship and ethnic origin. 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 August 9, 2012 and the Tribunal sent a Notice of Application to the respondent on September 11, 2012, which informed her that a Response to the Application must be filed by October 16, 2012. The applicant confirmed the respondent’s mailing address and the Tribunal issued a “no response decision” 2012 HRTO 2216, dated November 27, 2012 directing him to file a Response within 14 days of the date of the Interim Decision, i.e., December 11, 2012 and advising of the consequences of failing to respond. The respondent did not file a Response as required by the Rules or as directed in the Interim Decision. None of the Tribunal’s correspondence has been returned.

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:

11The 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.

12The 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.

13Once 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.

14A 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 him to file his Response. The respondent refuses, or has chosen not to participate in these proceedings.

5For the reasons set out above, I make the following order:

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

6I am not seized of this matter.