Generao v. Luxottica Canada, Lenscrafters, 2015 HRTO 1214

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christine Generao

Applicant

-and-

Luxottica Canada, Lenscrafters, Paragon Security, and OMERS Worldwide, Oxford Properties

Respondents

INTERIM DECISION

Adjudicator: Keith Brennenstuhl

Date: September 14, 2015

Citation: 2015 HRTO 1214

Indexed as: Generao v. Luxottica Canada, Lenscrafters

Introduction

1This Application alleges discrimination with respect to goods, services and facilities because of race, colour, ethnic origin, sex, age, association with a person identified by a ground listed and reprisal or threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

BACKGROUND

2On June 29, 2015, the Tribunal issued a Notice of Application (“the Notice”) to the respondents in which it directed that Responses must be filed with the Tribunal no later than August 3, 2015. The Notice was sent by regular mail and was not returned to the Tribunal as being undeliverable. 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 respondent Luxottica Canada, Lenscrafters (“Luxottica”) did not file a Response.

4On August 20, 2015 the Tribunal wrote to Luxottica directing it to file a full Response to the Application before September 3, 2015 together with an explanation for the failure to file a Response to date. The letter again warned Luxottica about the consequences of not filing a Response and Luxottica’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.

5To date, Luxottica has not complied with these directions and has not filed a Response or otherwise communicated with the Tribunal.

DECISION

6In 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.

7Where 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. I am satisfied that the respondent Luxottica has received the Notice of Application and the further direction requiring the filing of a Response. The respondent Luxottica refuses or has chosen not to participate in these proceedings.

ORDER

8For the reasons set out above, I make the following order:

a. The respondent Luxottica is deemed to have accepted all of the allegations set out in the Application; and

b. The respondent Luxottica is deemed to have waived all rights to notice or participation in these proceedings.

c. The respondent Luxottica is not entitled to further notice with respect to the Application.

NEXT STEPS

9The Respondents, Paragon Security and OMERS Worldwide, Oxford Properties have agreed to mediation. Within 10 days of the date of this Interim Decision the applicant will advise the Tribunal whether she agrees to mediation. If the applicant agrees to mediation, the Registrar will schedule a half day mediation among the applicant, Paragon Security and OMERS Worldwide, Oxford Properties. If the applicant in 2015-21232-I (the “related application”) agrees to mediation, this Application and the related application shall be mediated together.

10I am not seized of this matter.