Rayon Wallace v. Tune Up To Tires Inc. and Gus Moumoris, 2014 HRTO 1287

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rayon Wallace Applicant

-and-

Tune Up To Tires Inc. and Gus Moumoris Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott Date: August 29, 2014 Citation: 2014 HRTO 1287 Indexed as: Wallace v. Tune Up To Tires Inc.

1The applicant filed this Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2On July 2, 2014, the applicant filed a Request for Order During Proceedings ("RFOP") seeking an order directing the organizational respondent to provide the surname of a proposed respondent "Mohammed", who was employed by the organizational respondent during the applicant's employment.

3On July 8, 2014 the Tribunal issued a Notice of Application to the respondents in which it directed that a Response to the Application (Form 2) must be filed with the Tribunal by August 12, 2014. The Tribunal also directed the respondents to respond to the RFOP. The respondents were advised of the consequences of failing to file a Response to the Application as required (see below).

4No Response has been received from the respondents.

5Rule 5.5 of the Tribunal's Rules of Procedure 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.

6An 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.

7Failure to file a response or participate in a Tribunal proceeding may lead to orders against individual and corporate respondents without their participation. In Kearns v. 1327827 Ontario, 2009 HRTO 457, the Tribunal set out its approach, and rationale for that approach, in circumstances where respondents fail to file a Response after having been cautioned. Where no Response is filed and the Tribunal is satisfied the respondents have received notice, the Tribunal will proceed to determine the Application in the absence of the respondents.

8At paragraphs 11-14 of Kearns, the Tribunal noted that the enforcement procedures prescribed by the Code are important mechanisms available to the public for claiming and enforcing fundamental human rights. These enforcement procedures also provide a clear means for respondents to explain and defend against human rights allegations.

9It has now been two weeks since the Response was due. I am satisfied that the respondents have received notice of the Application and notice of the Tribunal's Order directing it to file a Response.

10It appears that the respondents refuse, or have chosen not to participate in these proceedings, notwithstanding notice of the implications of Rule 5.5. In the circumstances, the Tribunal will proceed without the participation of the respondents and deems the respondents to have waived their right to notice and to participate pursuant to Rules 5.5(b) and (c) and further deems the respondents to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a).

11In the absence of a surname for the proposed individual respondent "Mohammed", he is not properly named as a respondent to the Application.

12I am not seized of this case.