Yan Chen v. Oriental Food Mart (North York), 2013 HRTO 457

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yan Chen Applicant

-and-

Oriental Food Mart (North York) Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta Date: March 18, 2013 Citation: 2013 HRTO 457 Indexed as: Chen v. Oriental Food Mart (North York)

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 sex.

2The 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

3The Application was filed on July 31, 2012 and sent to the respondent on August 20, 2012. The respondent requested an extension of time until December 17, 2012 to file a Response. The Registrar granted an extension until November 6, 2012. Because the respondent did not file a Response within 35 days as required by the Tribunal’s Rules, or by the extended date allowed by the Registrar, the Tribunal issued a “no response decision” on December 5, 2012 (2012 HRTO 2282), directing that a response be filed within 14 days of the date of the above noted Interim Decision, 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

4In 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).

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 make oral submissions.

6I 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.

7The 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.

8For the reasons set out above, I make the following order:

• The respondent is deemed to have accepted all of the allegations set out in the Application;

• The respondent is 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 is directed to advise the Tribunal’s Registrar, in writing, whether she wishes to make oral submissions, and whether she wishes to provide submissions by way of teleconference or in person; and

• Within 21 days of this decision the applicant may submit any additional document she wishes the Tribunal to consider in deciding this Application.

9I am not seized of this matter.