McDowell v. 1276458 Ontario Inc. o/a A Dark Horse, 2013 HRTO 508

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jason McDowell

Applicant

-and-

1276458 Ontario Inc. o/a A Dark Horse

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: March 26, 2013

Citation: 2013 HRTO 508

Indexed as: McDowell v. 1276458 Ontario Inc. o/a A Dark Horse

WRITTEN SUBMISSIONS

1276458 Ontario Inc. o/a A Dark Horse, ) Aaron Crangle, Counsel

Respondent )

INTRODUCTION

1The purpose of this Interim Decision is to decide whether the Tribunal should set aside its previous Interim Decision, 2012 HRTO 2342, which deemed the respondent to have accepted all of the allegations in the Application, and to have waived all rights with respect to further notice or participation in this proceeding.

BACKGROUND

2On May 16, 2012, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), which alleged that the respondent discriminated against him with respect to employment because of his family status.

3On May 25, 2012, the Tribunal issued a Notice of Application and delivered the Application to the respondent by regular mail at the address provided by the applicant. The Notice directed the respondent to file a Response with the Tribunal no later than 35 days from the date of the Notice. The Notice also warned the respondent that if it failed to respond to the Application, the Tribunal may deem it to have accepted all of the allegations in the Application, proceed to deal with the Application without further notice to it, deem it to have waived all rights with respect to further notice or participation in the proceeding, and decide the matter based only on the material before the Tribunal.

4On September 11, 2012, the Tribunal issued an Interim Decision, 2012 HRTO 1718, and delivered it to the respondent by regular mail and courier. The Interim Decision had the following warning at paras. 5 and 7:

An application to the Tribunal starts a legal proceeding. A finding that a violation of the Code has occurred may lead to various orders, including monetary compensation, other forms of restitution to the applicant, and orders to take action to promote compliance with the Code. Failure to file a response or participate in a Tribunal proceeding may lead to orders against individual and corporate respondents without their participation. The respondent's attention is drawn to Rule 5.5 of the Tribunal’s Rules of Procedure which reads as follows:

5.5 Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal.

If the respondent wishes to participate in this proceeding, it shall file a Response with the Tribunal within 14 days of the date of this Interim Decision, together with an explanation of why the Response was not filed in accordance with the Notice of Application. If a Response is not received, the Tribunal may proceed without further notice to the respondent and may take any or all of the steps set out in Rule 5.5.

5On September 21, 2012, the Tribunal received an e-mail from Joe Salib, who identified himself as the accountant for the respondent. He stated that he had received the Tribunal’s Interim Decision, and was instructed by his client to inquire about the matter because his client was not aware of a proceeding before the Tribunal. He requested that the Tribunal forward him or his client any information that would shed light on the process and the nature of the claim.

6On the same day, the Tribunal sent an e-mail in response to Mr. Salib, which attached copies of the Application and the Notice of Application, and informed him that the Response form could be found on the Tribunal’s website.

7On October 1, 2012, the Tribunal sent Mr. Salib a further e-mail, which informed him that if a Response was not filed immediately, the Tribunal may proceed without further notice to the respondent, and take any or all of the steps set out in Rule 5.5. The e-mail also informed him that if the respondent required additional time to file its Response, it should make a request in writing to the Tribunal’s Registrar immediately.

8By December 13, 2012, the respondent had not filed a Response, or otherwise communicated with the Tribunal. Therefore, the Tribunal issued an Interim Decision, 2012 HRTO 2342, which deemed the respondent to have accepted all of the allegations in the Application, and to have waived all rights with respect to further notice or participation in this proceeding. The Tribunal also provided directions to the applicant with respect to disposing of his Application, including directing him, within 21 days, to file any further written submissions and/or documents that he wants the Tribunal to consider in deciding this Application, and to inform the Tribunal if he wants to attend a hearing. The applicant did not comply with this direction.

9On January 2, 2013, the respondent’s newly retained counsel filed a Request for an Order During Proceedings (“RFOP”), which requested that the Tribunal set aside its previous Interim Decision. In its submissions, the respondent essentially stated that it had assumed that Mr. Salib had filed a Response to the Application when, in fact, he had not.

10The applicant did not file a Response to the RFOP, and the time for doing so has now passed.

ANALYSIS

11The Tribunal has wide discretion to ensure the fair, just and expeditious resolution of the merits of the matters before it. See Rules 1.1, 1.7 and 5.2. In the circumstances of this case, where the respondent filed a RFOP to set aside the Tribunal’s previous Interim Decision fairly quickly, the applicant failed to comply with the Tribunal’s direction about attending a hearing, the consequences of the previous Interim Decision are significant for the respondent, and there is no evidence that setting aside the previous Interim Decision will cause prejudice to the applicant, I find that it is appropriate to set aside the previous Interim Decision, and allow the respondent to file a Response and participate in the proceeding. However, the respondent should be aware that any further failure to comply with the Tribunal’s Rules and directions may have serious consequences.

ORDER

12The Tribunal makes the following orders:

1. The Tribunal’s previous Interim Decision, 2012 HRTO 2342, is set aside.

2. Within 21 days of the date of this Interim Decision, the respondent shall file a Response to the Application.

13I am not seized of this matter.