HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Malek Bouraoui
Applicant
-and-
Ottawa Valley Cleaning and Restoration
Respondent
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Bouraoui v. Ottawa Valley Cleaning and Restoration
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, colour and place of origin.
2On October 31, 2013, the Tribunal issued a Notice of Application to the respondent in which it directed that a Response to the Application be filed no later than December 5, 2013. The respondent’s 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.
3On December 11, 2013 the Tribunal wrote again to the parties directing that the respondent file a full Response to the Application before January 10, 2014 together with an explanation for the failure to file a Response in a timely manner failing which the Tribunal may proceed without further notice to the respondent and may take any or all of the steps set out in Rule 5.5.
4To date the respondent has failed to comply with these Directions. Despite this failure the respondent has communicated with the Tribunal about seeking an extension of time to file a Response. However no Request for an extension of time has been received and there has been no communication from the respondent since the deadline of January 10, 2014.
5In 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, and the rationale for that approach:
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 rights 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 that the respondent has received notice of the Application and the Tribunal’s Directions above requiring it to file their Response. The respondent refuses or has chosen not to participate in these proceedings.
ORDER
7The Tribunal makes the following Orders:
a. The respondent is deemed to have accepted all of the allegations set out in the Application; and
b. The respondent is deemed to have waived all rights to notice or participation in these proceedings.
8Therefore, the Applications will proceed without further notice to the respondent.
NEXT STEPS
9The Tribunal went on in Kearns, above, to explain that, for several reasons, it will not generally make an order under Rule 5.5(d) (which permits the Tribunal to make a decision based upon the material filed at that point), without first providing an applicant with an opportunity to indicate whether he or she wishes to file further materials and/or make oral submissions.
10Accordingly, the Tribunal will schedule a one hour case management teleconference call to discuss the following:
a. Does the applicant wish to have an oral hearing or have the Tribunal decide the Application based upon the written materials filed?
b. Does the applicant intend to call witnesses and in what format?
c. What documents does the applicant intend to rely upon and in what format?
d. What are the issues raised in the Application?
e. What remedies is the applicant seeking from the Tribunal if the Tribunal finds that harassment or discrimination occurred, and what, if any evidence, does the applicant intend to rely upon in support of these remedies?
f. Does the applicant plan to make any legal submissions and does the applicant plan to rely upon any case law?
g. A timetable for the applicant to file the items set out in points a. to f. above, will be discussed and set during the case management teleconference call; and
h. If the applicant is seeking an oral hearing, the availability of the applicants and their witnesses will also be canvassed to schedule a hearing date so the applicant should have his calendar present during the case management teleconference call.
11The Tribunal will issue to the applicant a notice of the case management teleconference call setting out the date and time of the call and providing call-in instructions. There will be no evidence called during the case management teleconference call, the applicant is not required to file any materials with the Tribunal prior to the case management teleconference, and is not expected to have his legal submissions and/or case law ready for the teleconference call.
12I am not seized with this matter.
Dated at Toronto, this 4th day of February, 2014.
“Signed by”
David Muir
Vice-chair