Diane Preikschas-Brown v. Scully’s Crab Shack and Shawn Wheeler, 2014 HRTO 1789

Human Rights Tribunal of Ontario

B E T W E E N:

Diane Preikschas-Brown Applicant

-and-

Scully’s Crab Shack and Shawn Wheeler Respondents

DECISION

Adjudicator: Alison Renton Date: December 16, 2014 Citation: 2014 HRTO 1789 Indexed as: Preikschas-Brown v. Scully’s Crab Shack

1The applicant filed a Form 18, Application for Contravention of Settlement (“the Application”), with the Tribunal on May 28, 2014.

2Rules 24.1 and 24.2 of the Tribunal’s Rules of Procedure (“the Rules”) and Form 18 itself require that the party who files an application for contravention of settlement must also file a copy of the settlement with the Tribunal and deliver a copy of the Form 18 to each party to the settlement. The party must also file a Form 23, Statement of Delivery (“Form 23”), with the Tribunal, which contains information about to whom the Form 18 was delivered, as well as when and how it was delivered.

3The Tribunal has communicated with the applicant’s representative a number of times since the Application was filed with it. The Tribunal advised that the Application was incomplete because a copy of the settlement and the Form 23 had not been filed. After more communications with the applicant’s representative, a copy of the settlement was subsequently filed as was a Form 23. The Form 23 indicated that the applicant’s representative sent the Form 18 to the respondents at an address in Tiny, Ontario. This address was different from the respondents’ address identified on the Form 18. The Tribunal also emailed the respondents’ former counsel, located at the address in Tiny, Ontario, a copy of the Form 18 and requested that a Form 19 be filed by the respondents.

4That counsel then emailed the Tribunal and the applicant’s representative advising that he had retired from the practice of law earlier in 2014, had returned the correspondence that had been couriered to him, and advised that he did not accept service. It is clear that he is not representing the respondents any further.

5The Tribunal then wrote to the applicant’s representative by letter dated November 10, 2014, requesting information about whether the Form 18 had actually been sent to the respondents and who signed for the materials. The applicant’s representative responded that no one had signed for the materials, that the couriered material had been returned, but the material sent by regular mail had not. The applicant’s representative also stated that that they have no other address for the respondents and were unable to attempt service to a secondary location.

6The Tribunal set another letter dated November 18, 2014, asking the applicant’s representative if the Application had been sent to another address than the Tiny location for the respondents, requested that information by November 28, 2014, and stated that the Tribunal could not deem the package to be served on the respondents based upon the information that it had. The Tribunal warned that the failure to respond to the correspondence may be an abandonment of the Application and that the file may be closed. The applicant’s representative did not respond to this letter.

7Section 45.9(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), says that a contravention of settlement application shall be in a form approved by the Tribunal. Rule 24.1 of the Tribunal’s Rules, as noted above, requires the party filing a Form 18 to deliver it to the other party as well as to the Tribunal. Unlike applications under section 34 of the Code, which the Tribunal delivers to the respondent(s), a Form 18 applicant is required to deliver the application alleging contravention of settlement to the respondents.

8Underlying Rule 24.1 are the principles that the party against whom the allegations are made knows about the allegations and has an opportunity to respond to those allegations. In this case, the applicant has not delivered the Application to the respondents. The applicant’s failure to file the Application in compliance with the Tribunal’s Rules means that the Tribunal cannot properly consider the Application or the allegations contained within it. It would be manifestly unfair for the Tribunal to proceed with an application that has not been provided to the respondents. See Fortin v. Workplace Safety and Insurance Board, 2011 HRTO 2133.

9The Application cannot proceed in these circumstances. The Tribunal will close its file.