Jose Fuentes v. Century Fitness Gym and Phil Parusis, 2014 HRTO 1334

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jose Fuentes

Applicant

-and-

Century Fitness Gym and Phil Parusis

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: September 10, 2014

Citation: 2014 HRTO 1334

Indexed as: Fuentes v. Century Fitness Gym

Introduction

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

BACKGROUND

2On November 19, 2013, the Tribunal issued a Notice of Application (“the Notice”) to the respondents in which it directed that a Response to the Application must be filed with the Tribunal by no later than January 10, 2014. The Notice contained the following warning:

If you fail to respond to the Application, the HRTO may deem you to have accepted all of the allegations in the Application, deem you to have waived all rights with respect to further notice or participation in the proceeding, proceed to deal with the Application without further notice to you and decide the matter based only on the material before the HRTO.

3The Notice was sent to both respondents by regular mail at the organizational respondent’s address. The Notice sent to the individual respondent, Phil Parusis, was returned as undeliverable.

4On December 27, 2013, the applicant provided both a home address and a new work address for Mr. Parusis. On January 9, 2014, the Tribunal delivered the Notice to Mr. Parusis by regular mail, at the home address provided by the applicant, and directed him to file a Response to the Application by February 13, 2014.

5The organizational respondent filed a Response to the Application. Mr. Parusis did not file a Response to the Application as directed, and the Notice delivered to his home address was not returned to the Tribunal as undeliverable.

6On February 24, 2014, the Tribunal wrote to Mr. Parusis directing that he file a Response to the Application before March 10, 2014, together with an explanation for the failure to file a Response. The letter included a copy of the Notice of Application and was delivered to Mr. Parusis by both regular mail and courier at both the home address and new work address provided by the applicant. The letters delivered to Mr. Parusis at the new work address were returned to the Tribunal as undeliverable. The letters delivered to Mr. Parusis at his home address were not returned as undeliverable. The Tribunal’s letter warned Mr. Parusis about the consequences of not filing a Response, and his attention was drawn to Rule 5.5 of the Tribunal’s Rules of Procedure which provides:

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.

7It appears from the Tribunal’s file that on February 26, 2014, Mr. Parusis contacted the Tribunal by telephone and asked that all documents be sent to him at his email address, which he provided. On February 26, 2014, the Tribunal emailed Mr. Parusis, and attached documents, including a copy of the Notice of Application and the Tribunal’s February 24, 2014 letter to him, directing that he file a Response to the Application. The Tribunal also advised Mr. Parusis in its email to him that his Response to the Application was due by March 10, 2014. The email correspondence to Mr. Parusis was not returned as undeliverable.

8On April 30, 2014, the Tribunal delivered a Notice of Mediation to the parties, indicating that a mediation would take place on August 6, 2014. A copy of the Notice of Mediation was sent to Mr. Parusis by email at the email address he provided, and was not returned to the Tribunal as undeliverable. The organizational respondent attended the mediation, but Mr. Parusis did not.

9To date, Mr. Parusis has not filed a Response to the Application, or otherwise communicated with the Tribunal since February 26, 2014.

DECISION

10In Kearns v. 1327827 Ontario, 2009 HRTO 457 at paras. 11 to 14, the Tribunal set out its approach in circumstances where a respondent fails to file a Response after having been cautioned by the Tribunal about the consequences of not doing so. As the Tribunal noted, after having been provided clear notice of what is required, 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 rights to assert a claim and seek a timely determination of that claim.

11Where no Response is filed, 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 in the proceeding and deem the respondent to have accepted all of the allegations set out in the Application.

12In the present case, I am satisfied that Mr. Parusis received the Notice of Application and the further direction requiring the filing of a Response. It appears that Mr. Parusis refuses or has chosen not to participate in these proceedings.

ORDER

13For the reasons set out above, I make the following order:

a. The individual respondent, Phil Parusis, is deemed to have waived all rights to notice or participation in these proceedings.

b. The individual respondent, Phil Parusis, is not entitled to further notice with respect to the Application.

14I am not seized of this matter.