Julie Costigane v. Nyood Restaurant and Arturo Gayle, 2013 HRTO 524

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julie Costigane

Applicant

-and-

Nyood Restaurant and Arturo Gayle

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: March 27, 2013

Citation: 2013 HRTO 524

Indexed as: Costigane v. Nyood Restaurant

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 race, colour, ancestry, ethnic origin and sex. The individual respondent, Arturo Gayle has failed to file a Response, notwithstanding having received notice of the Application. As a result, the Tribunal will proceed without the participation of Mr. Gayle

2The Application was filed on July 9, 2012 and sent to the respondents, including Mr Gayle, on September 7, 2012. Neither respondent filed a Response within 35 days as required by the Tribunal’s Rules and the Tribunal issued a “no response decision” 2012 HRTO 1991, dated October 22, 2012 directing them to file a Response within 14 days of the date of the Interim Decision, and advising of the consequences of failing to respond. The organizational respondent filed a Response on November 19, 2012 and provided a personal address for the individual respondent. The Tribunal re-served the Application on Mr. Gayle and advised him that he must file a Response no later than January 10, 2013. Mr. Gayle did not file a Response as required by the Rules or as directed by the Tribunal and the Tribunal issued a second “no response decision”, 2013 HRTO 271, dated February 15, 2013, again directing him to file a Response within 14 days of the date of the Interim Decision, and advising of the consequences of failing to respond. As of the date of this Interim Decision, Mr. Gayle has not filed a Response and 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 individual 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.

6There is an organizational respondent to the Application, which has filed a Response in which it disputes the allegations and deny any violations of the Code. Accordingly, the applicant shall have to prove these allegations to succeed against the participating respondent. In these circumstances, it would be inappropriate to deem Mr. Gayle to have accepted all the allegations in the Application or to decide the matter based only on the material before the Tribunal, since such deemed acceptance and the material filed by the applicant may be contradicted in the hearing.

7I am not seized of this matter.