David Kergan v. Bark-er Pets Inc. and Pet Valu Canada Inc., 2015 HRTO 1537

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Kergan

Applicant

-and-

Bark-er Pets Inc. and Pet Valu Canada Inc.

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: November 13, 2015

Citation: 2015 HRTO 1537

Indexed as: Kergan v. Bark-er Pets Inc.

1The purpose of this Interim Decision is to deal with the failure of the respondent, Pet Valu Canada Inc. (the “respondent Pet Valu Canada”), to file a Response to the Application.

2On June 17, 2015, the applicant filed a Request for an Order During Proceeding to amend the Application to add the franchisor, Pet Valu Canada Inc., as a respondent.

3Neither the respondent franchisee, Bark-er Pets Inc., nor Pet Valu Canada Inc. filed a Response to the applicant’s Request.

4On August 7, 2015, the Tribunal issued an Interim Decision, 2015 HRTO 1057, which made the following orders and directions:

1. The applicant’s request to amend his Application to add Pet Valu Canada Inc. as a respondent is granted.

2. The Tribunal’s Registrar will deliver a copy of the Application, the respondent franchisee’s Response, the applicant’s Reply, and a copy of this Interim Decision to Pet Valu Canada Inc., which is directed to file a Response to the Application within 35 days of the date of this Interim Decision.

5The respondent Pet Valu Canada failed to file a Response within 35 days of the date of the Interim Decision. Accordingly, on September 17, 2015, the Tribunal issued a No Response to Notice of Application letter to the respondent Pet Valu Canada, which directed it to file a Response by October 2, 2015. The letter warned the respondent Pet Valu Canada about the consequences of not filing a Response and drew its attention 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.

6The respondent Pet Valu Canada failed to file a Response by October 2, 2015, and has still not filed a Response to date.

7In the circumstances, the Tribunal makes the following orders:

1. The Tribunal will proceed to deal with the Application without further notice to the respondent Pet Valu Canada; and

2. The respondent Pet Valu Canada is deemed to have waived all rights with respect to further notice or participation in the proceeding.

8I am not seized of this matter.