Tammy Pelletier v. Andy Myers Lodge and Julien Kalka, 2014 HRTO 861

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tammy Pelletier

Applicant

-and-

Andy Myers Lodge and Julien Kalka

Respondent

INTERIM DECISION

Adjudicator: David Muir

Decision Date: June 11, 2014

Citation: 2014 HRTO 861

Indexed as: Pelletier v. Andy Myers Lodge

1The applicant filed this Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment because of disability.

2The Tribunal issued a Notice of Application to the respondents in which it directed that a Response to the Application must be filed with the Tribunal not later than May 14, 2014.

3On May 20, 2014 the Tribunal wrote to the parties and directed the respondents that if they wished to participate in the Tribunal process they must deliver and file a Response (Form 2) by June 3, 2014. The respondentswas advised of the consequences of failing to file a Response to the Application as required (see below).

4Neither respondent has filed a Response to the Application or communicated with the Tribunal in any way.

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 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.

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 more than a week since the Response and accompanying explanation for the delay were 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).

11I am not seized of this case.