Kannaiti v. Allen, 2014 HRTO 1270

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fadi Kash Kannaiti

Applicant

-and-

Patricia D. Allen

Respondent

INTERIM DECISION

Adjudicator: Paul Aterman

Date: August 27, 2014

Citation: 2014 HRTO 1270

Indexed as: Kannaiti v. Allen

1This Application alleges discrimination with respect to employment because of race, ancestry, place of origin, citizenship and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Reprisal is also alleged.

2In November of 2013 the Tribunal asked the parties to make submissions on the question of whether the Application should be deferred in order to await a decision from the Ministry of Labour regarding a complaint of unpaid wages made by the applicant. The respondent was given a copy of the Application at the time the Tribunal requested submissions from the parties. She made no submissions on the deferral issue. The applicant agreed to deferral and the Ministry of Labour rendered its decision in April of 2014.

3In May of 2014 the applicant made a request that the Application be reactivated. The respondent was provided a copy of his request, but again she made no submissions in relation to the request. The Tribunal granted the request to reactivate.

4On July 10, 2014 the Tribunal sent a letter to the respondent telling her that she needed to file a Response to the Application by August 15, 2014. The letter warns the respondent that if she fails to file a Response by the deadline, the Tribunal may deem her to have accepted all the allegations set out in the Application and to have waived her right with respect to further notice or participation in this proceeding.

5In 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).

6I am satisfied the respondent has received notice of the Application and the Tribunal’s direction that she file a Response. The respondent refuses or has chosen not to participate in these proceedings.

7The 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/or make oral submissions.

8Whether or not the applicant wishes to make oral submissions, he should provide the following documentary material to the Tribunal:

• a declaration setting out in full all the facts upon which the applicant relies, or confirmation that the summary of facts in the Application is complete and reflects the evidence that will be given by the applicant;
• declarations setting out the evidence of any other witnesses whose evidence the applicant wishes to rely upon;
• any legal submissions the applicant wishes to make in writing; and
• any other documentary material upon which the applicant wishes to rely.

ORDER

9For the reasons set out above, I make the following order:

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

DIRECTIONS

10In accordance with paragraphs 7-8, I make the following directions with respect to next steps in this Application:

1. The applicant shall file the materials set out in paragraph 8 above within four weeks of the date of this Interim Decision;
2. If the applicant also wishes to make oral submissions, he shall advise the Registrar within four weeks of this Interim Decision and the Registrar will schedule a half-day in person hearing and issue a Notice of Hearing confirming the details of the hearing.

11If, within four weeks of this decision, the applicant does not file further materials or advise the Registrar he wishes to make oral submissions, then the Application will be decided based on all of the submissions and material filed with the Tribunal to date.