Hibbert v. Weber Marking Systems of Canada, 2013 HRTO 897

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dwight Hibbert Applicant

-and-

Weber Marking Systems of Canada, Linda Duquette and Adolifo Balinado Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson Date: May 23, 2013 Citation: 2013 HRTO 897 Indexed as: Hibbert v. Weber Marking Systems of Canada

WRITTEN SUBMISSIONS

Weber Marking Systems of Canada, Linda Duquette and Adolifo Balinado, Respondents

Scott Morris, Representative

Introduction

1This Application was filed on April 14, 2011, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination with respect to employment.

2This Interim Decision addresses the respondents’ Request for an Order During Proceedings (“Request”) that the Tribunal’s earlier Interim Decision deeming the respondents to have accepted all of the allegations in the Application be varied.

BACKGROUND

3In an Interim Decision dated March 5, 2012, 2012 HRTO 463, the Tribunal noted that it had earlier granted, by letter, a request from the respondents for an extension of time to file a Response to the Application. However, as of March 5, 2012, the Tribunal had not received a Response from the respondents, and the time for providing a Response had passed. The Tribunal directed the respondents to file a Response within 10 days of the date of the Interim Decision, together with an explanation of why a Response was not filed in accordance with the timeline set out in the extension letter. The Tribunal indicated that if a Response was not received, 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 of the Tribunal’s Rules of Procedure.

4In a second Interim Decision dated April 23, 2012, 2012 HRTO 820, the Tribunal noted that the respondents did not file a Response as required by the Tribunal’s Rules, and as directed in the Tribunal’s earlier Interim Decision. The Tribunal ordered that the respondents were deemed to have accepted all of the allegations set out in the Application, and to have waived all rights to notice or participation in these proceedings.

5By Notice of Confirmation of Hearing dated July 10, 2012, the Tribunal scheduled a hearing by conference call for October 19, 2012. It appears that the respondents attended on the conference call on October 19, 2012 and disputed the Application. It also appears that the individual respondents indicated that they had thought that the organizational respondent was responding to the Application on their behalf. It is my understanding that the conference call was then converted to a mediation, but ultimately the matter was not resolved.

6By Case Assessment Direction dated January 29, 2013, the Tribunal provided the following directions to the parties:

In the circumstances, if any of the respondents wish to have the Tribunal’s earlier Interim Decision deeming them to have accepted all of the allegations set out in the Application and to have waived all right to notice or participation in these proceedings varied, they must deliver to the applicant and file with the Tribunal a Request for an Order During Proceedings (Form 10) for the Tribunal’s consideration within 14 days of the date of this Interim Decision. The respondents must also file a Response (Form 2) to the Application within 14 days of the date of this Interim Decision, together with an explanation of why a Response was not filed in accordance with the Tribunal’s earlier directions.

The applicant may provide a Response (Form 11) to any Requests filed by the respondents within 14 days of receiving any Requests.

Upon receipt of the respondents’ Requests and Responses, and any submissions from the applicant in Response to any Requests, the Tribunal will either determine the Requests, or issue further directions. If the respondents do not file Requests and Responses as directed, the Tribunal may proceed without further notice to the respondents.

REQUEST

7On February 19, 2013, the respondents jointly filed a Request and a Response to the Application, dated February 11, 2013. The respondents indicated that they delivered both the Request and the Response to the applicant on February 11, 2013.

8In their Request, the respondents indicate that they wish to alter the Tribunal’s earlier Interim Decision wherein they were deemed to have accepted all of the allegations set out in the Application, and that they would like to respond to the Application, jointly. With respect to an explanation of why a Response was not filed in accordance with the Tribunal’s earlier directions, the respondents state that they received unsatisfactory guidance and that they made it clear on the October 19, 2012 conference call that they would like to respond to the Application, jointly. The applicant has not responded to the respondents’ Request and the time for doing so has passed.

9With respect to the individual respondents, I have no reason to doubt their earlier explanation on the October 19, 2012 conference call that they had thought that the organizational respondent was responding on their behalf. I note that, in correspondence dated July 19, 2011, the organizational respondent’s representative requested, on behalf of all respondents, an extension of time to complete their Response. I also note that, as the applicant has not responded to the respondents’ Request, no prejudice has been raised by the applicant.

10In the circumstances, I find that it would not be fair to deny the individual respondents the opportunity to respond to and defend against this Application. The respondents’ Request that the Tribunal’s April 23, 2012 Interim Decision be varied is granted with respect to the individual respondents, as ordered below.

11With respect to the organizational respondent, beyond stating that they received unsatisfactory guidance, no further explanation has been provided by the respondents for why the organizational respondent failed to file a Response after being granted an extension of time, nor for why it did not comply with the directions set out in the Tribunal’s earlier Interim Decision. While, in my view, the organizational respondent’s explanation for not providing a timely Response may be lacking, I also note that the Tribunal has indicated that proceeding in the absence of a party is an extremely serious step. See Dorohoi v. Teletech, 2009 HRTO 927.

12In the present case, all of the respondents attended on the October 19, 2012 conference call and disputed the Application. They subsequently participated in mediation, and jointly filed a Request and a Response to the Application, substantially complying with the Tribunal’s January 29, 2013 Case Assessment Direction. I have also determined that it would be unfair to not allow the individual respondents to respond to and defend against the Application, and they are no longer deemed to have accepted all of the allegations in the Application. I also note that the allegations in the Application, as they relate to each of the respondents, appear to overlap to some degree. Again, the applicant has not responded to the respondents’ Request, and has not raised any prejudice.

13In all of the circumstances, I also find that it would not be fair to deny the organizational respondent the opportunity to respond to and defend against the Application, along with the individual respondents. The respondents’ Request that the Tribunal’s April 23, 2012 Interim Decision be varied is also granted with respect to the organizational respondent.

ORDER

14The Tribunal orders that its earlier Interim Decision in this matter dated April 23, 2012, that the respondents were deemed to have accepted all of the allegations set out in the Application, and to have waived all rights to notice or participation in these proceedings, is reversed.

15The Tribunal will proceed to schedule a one-day hearing in this matter, and a Notice of Hearing will follow from the Registrar’s office. The parties are reminded that it is important that they comply with the pre-hearing disclosure requirements set out in the Notice of Hearing, and required by Rules 16 and 17 of the Tribunal’s Rules, and that there are serious consequences if they fail to do so.

16I am not seized.