Audley v. Anko Real Estate Holdings Ltd and Joan Cates, 2015 HRTO 1231

Human Rights Tribunal of Ontario

B E T W E E N:

Ronalda Audley

Applicant

-and-

Anko Real Estate Holdings Ltd and Joan Cates

Respondents

INTERIM DECISION

Adjudicator: Laurie Letheren

Date: September 16, 2015

Citation: 2015 HRTO 1231

Indexed as: Audley v. Anko Real Estate Holdings Ltd.

1This Application alleges discrimination with respect to housing because of receipt of public assistance contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On July 8, 2015, the Tribunal issued a Notice of Application to the respondents. The Tribunal directed the respondents to file Responses no later than August 12, 2015. The corporate respondent filed a Response on August 12, 2015.

3On August 14, 2015, the Tribunal wrote to the personal respondent telling her that she needed to file a Response to the Application by August 31, 2015. The Tribunal again warned the personal respondent about the consequences of not filing a Response and her 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; and

d) decide the matter based only on the material before the Tribunal.

4Neither the Notice of Application nor the Tribunal’s August 14, 2015 letter to the individual respondent was returned to the Tribunal as undeliverable.

5In Kearns v. 1327827 Ontario, 2009 HRTO 457 at paragraphs 11-14, the Tribunal set out its approach in circumstances where a respondent fails to file a Response after having been cautioned, and the rationale for that approach:

The Code is an important public statute which enshrines our most basic and fundamental rights and freedoms. The enforcement procedures in the Code are equally important, since without an effective means of claiming a violation of a right, and seeking redress where a violation is found, those fundamental human rights would have little meaning.

The procedures established by the Tribunal’s Rules provide a mechanism to resolve disputes arising under the Code fairly and expeditiously. An individual who believes his or her rights have been infringed may bring an Application. That Application must be complete and set out the allegations which, in the applicant’s view, constitute a violation of the Code. Before serving an Application on the person or organization named as a respondent, the Tribunal will review the Application to ensure that it is complete and that it appears to be within the jurisdiction of the Code.

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 right 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 the personal respondent has received Notice of the Application and the Tribunal’s direction that she file a Response. The Tribunal’s mail has not been returned. The individual respondent either refuses or has chosen not to participate in these proceedings.

ORDER

7For the reasons set out above, I make the following order pursuant to Rule 5.5 of the Tribunal’s Rules of Procedure:

1. The personal respondent is deemed to have accepted all of the allegations set out in the Application;

2. The personal respondent is deemed to have waived all rights to notice or participation in these proceedings; and

3. The personal respondent is not entitled to further notice with respect to the Application.

DIRECTIONS

8The applicant and the corporate respondent have agreed to mediation. The Registrar shall schedule a mediation date in due course.

9I am not seized.