Bourgeois v. Kumar, 2015 HRTO 1438

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Katherine Bourgeois

Applicant

-and-

Bala Kumar

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: October 28, 2015

Citation: 2015 HRTO 1438

Indexed as: Bourgeois v. Kumar

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

2In a previous Decision, 2015 HRTO 173, the Application was dismissed as abandoned. The applicant filed a Request for Reconsideration, and her request was granted in a subsequent Reconsideration Decision, 2015 HRTO 463, such that her Application was permitted to continue to proceed.

3The Tribunal originally sent a copy of the Application to the respondent on August 12, 2014, along with a direction to file a Response by September 16, 2014. After no Response was received, a second letter was sent on September 25, 2014. Following the granting of the Request for Reconsideration, the Tribunal sent another copy of the Application to the respondent by letter dated May 12, 2015, and directed the respondent to file a Response by June 16, 2015. A copy of this letter was also emailed to the respondent. The respondent did not file a Response.

4The Tribunal sent another letter, dated August 25, 2015, to the respondent, directing him to file a Response by September 8, 2015. This letter was sent by regular mail, courier and email. The letter warned the respondent about the consequences of failing to file a Response, pursuant to section 5.5 of the Tribunal’s Rules of Procedure (“the Rules”). The letter sent by courier was returned to the Tribunal, noting that the respondent had “moved”. The letters issued by regular mail and email were not returned as being undeliverable.

5A new address for the respondent was obtained by the Tribunal and another letter dated September 24, 2015 was sent by mail and email. This letter directed the respondent to file a Response by October 8, 2015, and warned that if he failed to do so, the Tribunal may proceed without further notice to him and that the Tribunal may take any or all of the steps set out in Rule 5.5 of the Tribunal’s Rules. The letter was not returned as being undeliverable and the respondent has still not filed a Response.

6Section 5.5 of the Tribunal’s Rules states:

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 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.

7In 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.

8Where 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 refuses or has chosen not to participate in these proceedings.

order

9For 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

10The Tribunal further stated, in Kearns, above, 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.

11Accordingly, 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 intent to rely upon in support of these remedies?

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

12The 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 hearing dates, if necessary, 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 available at the conference call so that the Tribunal can set future dates for the receipt of evidence and/or submissions and/or hearing dates.

13I am not seized with this matter.