McMurtie v. Fauchon, 2015 HRTO 1450

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lynda McMurtie

Applicant

-and-

Colette Tanguay Fauchon

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: October 29, 2015

Citation: 2015 HRTO 1450

Indexed as: McMurtie v. Fauchon

1The applicant filed this Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On June 24, 2015, the Tribunal issued a Notice of Application to the respondent in which it directed that a Response to the Application must be filed with the Tribunal no later than July 29, 2015. The respondent was advised of the consequences of failing to file a Response to the Application as required (see below).

3On August 31, 2015, the Tribunal issued further correspondence directing that a Response to the Application must be filed with the Tribunal not later than September 14, 2015. The respondent was again advised of the consequences of failing to file a Response to the Application as required (see below).

4On September 11, 2015, the respondent spoke to a Case Processing Officer in French, acknowledging receipt of the Application.

5On September 30, 2015, the Tribunal issued further correspondence, in both French and English, directing that a Response to the Application must be filed with the Tribunal no later than October 14, 2015. The respondent was again advised of the consequences of failing to file a Response to the Application as required (see below).

6No Response has been received from the respondent.

7Rule 5.5 of the Tribunal’s Rules of Procedure reads as follows:

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.

8An application to the Tribunal starts a legal proceeding. A finding that a violation of the Code has occurred may lead to various orders, including monetary compensation, other forms of restitution to the applicant, and orders to take action to promote compliance with the Code.

9Failure to file a response or participate in a Tribunal proceeding may lead to orders against individual and corporate respondents without their participation. In Kearns v. 1327827 Ontario, 2009 HRTO 457 (“Kearns”), the Tribunal set out its approach, and rationale for that approach, in circumstances where a respondent fails to file a Response after having been cautioned. Where no Response is filed and the Tribunal is satisfied the respondent has received notice, the Tribunal will proceed to determine the Application in the absence of the respondent.

10At paragraphs 11-14 of Kearns, the Tribunal noted that the enforcement procedures prescribed by the Code are important mechanisms available to the public for claiming and enforcing fundamental human rights. These enforcement procedures also provide a clear means for respondents to explain and defend against human rights allegations.

11It has now been more than two weeks since the Response and accompanying explanation for the delay were last due. I am satisfied that the respondent has received notice of the Application and notice directing it to file a Response.

12It appears that the respondent refuses, or has chosen not to participate in these proceedings, notwithstanding notice of the implications of Rule 5.5.

ORDER

13For 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 except that this Interim Decision, in both English and French, will be delivered by mail and by courier to the respondent.

NEXT STEPS and directions

14The 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.

15Accordingly, 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?

16At least 15 days prior to the case management conference call, the applicant must file documentation which confirms that the respondent named in the Application is her landlord. That documentation can be a copy of the applicant’s lease, receipt from the landlord for the payment of rent, or a copy of a rent cheque cashed by the landlord.

17The 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 other than the documentation referred to in paragraph 16 (confirmation that the respondent is the applicant’s landlord);

• 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;

• 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.

18I am not seized of this case.