HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dayton Washington
Applicant
-and-
Soul Restaurants Canada Inc. and Jessica Chorazt
Respondents
INTERIM DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Washington v. Soul Restaurants Canada Inc.
Introduction
1This Application alleges discrimination with respect to employment because of sexual orientation contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
background
2The applicant filed his Application on February 17, 2015. The Tribunal delivered it to both respondents on May 7, 2015, with a letter that stated, in part:
If a respondent fails to respond, he or she may lose the ability to present a defence.
3On that same date, the respondent restaurant filed a partial Form 2 Response in which that respondent stated its Response was not intended to respond to all of the applicant’s allegations.
4On July 30, 2015, a summary hearing was held by teleconference to determine whether this Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that the Application or part of the Application would succeed, and also to make submissions with respect to the removal of the personal respondent as a party. The respondent restaurant had filed a partial Form 2 Response.
5On August 4, 2015, after the summary hearing, the Tribunal issued Interim Decision, 2015 HRTO 1031, in which the each of the respondents was ordered to file a full Form 2 Response to the Application within 35 days of receiving the Interim Decision, which the Tribunal delivered to them by courier and ordinary mail. They have not been returned as undeliverable.
6The personal respondent filed a Form 2 Response in response to the Interim Decision.
7To date, the respondent restaurant has not filed a full Form 2 Response, nor otherwise communicated with the Tribunal.
decision
8In Kearns v. 1327827 Ontario, 2009 HRTO 457 at paras. 11-14, 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).
9I am satisfied that the respondent restaurant received the Tribunal’s Interim Decision ordering it to file its Response. The respondent refuses or has chosen not to participate in these proceedings.
order
10For the reasons set out above, I make the following order:
The respondent restaurant is deemed to have accepted all of the allegations set out in the Application; and
The respondent restaurant is deemed to have waived all rights to notice or participation in these proceedings.
11Therefore, the Application will proceed without further notice to the respondent restaurant.
next steps
12This matter will be scheduled for a one-day hearing.
13I am not seized of this matter.
Dated at Toronto, this 23rd day of September, 2015.
“Signed by”
Dawn J. Kershaw
Vice-chair