Emile Wickham v. Hong Shing Chinese Restaurant, 2015 HRTO 1405

Human Rights Tribunal of Ontario

B E T W E E N:

Emile Wickham

Applicant

-and-

Hong Shing Chinese Restaurant

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: October 21, 2015

Citation: 2015 HRTO 1405

Indexed as: Wickham v. Hong Shing Chinese Restaurant

Introduction

1This Application alleges discrimination with respect to services because of race, colour and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

BACKGROUND

2On May 13, 2015, the Tribunal issued a Notice of Application (“the Notice”) to the respondent in which it directed that a Response must be filed with the Tribunal no later than June 17, 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 did not file a Response.

4On July 16, 2015, the Tribunal wrote again to the parties directing that the respondent file a full Response to the Application before July 30, 2015 together with an explanation for the failure to file a Response to date. The letter again warned the respondent about the consequences of not filing a Response and the respondent'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, the respondent 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 (“Kearns”), 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 has received the Notice of Application and the further direction requiring the filing of a Response. The respondent refuse or have chosen not to participate in these proceedings.

ORDER

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

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

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

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

NEXT STEPS

9The Tribunal went on in Kearns, above, to explain that, for several reasons, it will not generally make a decision based upon the material filed by the applicant without first providing an applicant with an opportunity to indicate whether he or she wishes to file further materials and/or make oral submissions.

10Accordingly, the Tribunal will schedule a one-hour case management conference call to set out a timetable and discuss the following:

a. Does the applicant wish to have an oral hearing or have the Tribunal decide the Application based upon written materials filed?

b. Does the applicant intend to call witnesses? Do these witnesses need to testify in person or can they give their evidence over the telephone, in writing or in some other format?

c. What documents does the applicant intend to rely upon?

d. What are the issues raised in the Application?

e. What remedies is the applicant seeking in the event that the Tribunal finds that the applicant’s rights under the Code were infringed? What evidence does the applicant intend to rely upon in support of these remedies?

f. Does the applicant plan to make any legal submissions or rely on any case law?

11The Tribunal will issue to the applicant a notice of case management conference call setting out the date and time of the call and providing call-in instructions.

• The applicant will not be required to file any materials in advance of the conference call;

• No evidence will be called or submitted at the conference call;

• However, if the applicant intends to call witnesses, the applicant should, in advance of the conference call, canvass with these witnesses when they are available to testify so that dates can be scheduled at the conference call;

• The applicant will not be expected to make legal submissions or provide case law at the conference call; and

• The applicant should have a calendar at this conference call so that the Tribunal can set future dates for the receipt of evidence and/or submissions.

12I am not seized of this matter.