Sharma v. Benoit, 2014 HRTO 1347

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hemani Sharma Applicant

-and-

Elvis Benoit Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: September 11, 2014 Citation: 2014 HRTO 1347 Indexed as: Sharma v. Benoit

1By Application filed on December 17, 2013, the applicant alleged that the respondent discriminated against the applicant because of race, colour, ancestry, place of origin and ethnic origin contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the "Code").

2The Tribunal unsuccessfully attempted to deliver a Notice of Application to the respondent to three separate addresses provided by the applicant. Finally, the Tribunal successfully advised the respondent by e-mail on July 7, 2014 that it had issued a Notice of Application to him on May 1, 2014. In its letter of July 7, 2014, the Tribunal advised the respondent of the consequences of not filing a Response to the Application. The Tribunal advised the respondent that, if he wished to participate in this proceeding, he was required to file a Response no later than July 21, 2014.

3It is clear that the respondent received the Tribunal's e-mail since he responded by sending two e-mails to the Tribunal using very inappropriate language. However, the respondent did not file a Response.

4By Interim Decision, 2014 HRTO 1189, the Tribunal directed the respondent to file a Response with the Tribunal within 14 days of the date of the Interim Decision if he wished to participate in this proceeding.

5The respondent again did not file a Response and the time period for doing so has elapsed.

6Rule 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.

7An 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.

8Failure 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 a respondent fails to file a Response after having been cautioned. Where no Response is filed and the Tribunal is satisfied the respondent has received notice, the Tribunal will proceed to determine the Application in the absence of the respondent.

9At 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.

ORDER

10In the circumstances, the Tribunal will proceed without the participation of the respondent and deems the respondent to have waived his right to notice and to participate pursuant to Rules 5.5(b) and (c) and further deems the respondent to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a).

11The Tribunal's Registrar shall issue a Notice of Hearing to the applicant scheduling a one day in person hearing in this matter.

12I am not seized of this case.