Bagherian v. Seneca College of Applied Arts and Technology, 2015 HRTO 1590

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Al Bagherian Applicant

-and-

Seneca College of Applied Arts and Technology and Evan Weaver Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: November 24, 2015 Citation: 2015 HRTO 1590 Indexed as: Bagherian v. Seneca College of Applied Arts and Technology

WRITTEN SUBMISSIONS

Al Bagherian, Applicant Self-represented

Seneca College of Applied Arts and Technology and Evan Weaver, Respondents Karen Tobin, Representative

1On August 28, 2015, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents subjected him to discrimination and reprisals with respect to employment.

2On September 14, 2015, the Tribunal delivered the Application to the respondents, directed them to file a Response by no later than October 19, 2015, and notified them of the potential consequences of failing to file a Response:

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.

3On October 19, 2015, the respondents filed a Request for an Order During Proceedings (“RFOP”), which requested that the Application be dismissed on a preliminary basis because it was filed outside the one-year time limit in s. 34(1) of the Code, but they did not file a Response to the Application.

4On November 2, 2015, the applicant filed an RFOP and a Response to the respondents’ RFOP, which requested, among other things, that the respondents be ordered to file a Response to his Application.

5On November 16, 2015, counsel retained by the respondents filed a letter, which stated that the respondents were waiting for the Tribunal’s response to its RFOP, and that a Response to the Application was being prepared and would be filed “shortly”. To date, no such Response has been filed, and five weeks have passed since it was due.

6Rule 8.2 of the Tribunal’s Rules of Procedure provides:

A complete Response must provide the information requested in each section of the Form 2, respond to each allegation set out in the Application and must also include any additional facts and allegations on which the Respondent relies. Where a Respondent alleges the issues in dispute in the Application are the subject of:

a) a full and final signed release between the parties;

b) a civil court proceeding requesting a remedy based on the alleged human rights infringement; or

c) a complaint filed with the Ontario Human Rights Commission; or

d) exclusive federal jurisdiction,

the Respondent need not respond to the allegations in the Application, but must attach a copy of the applicable release, or statement of claim or court decision, or complaint filed with the Ontario Human Rights Commission or its decision and must include with the Response complete argument in support of its position that the Application should be dismissed. Notwithstanding anything else in Rule 8.2, the Tribunal may direct a Respondent to file a complete Response where the Tribunal considers it appropriate.

7Rule A4.2 of the Social Justice Tribunals Ontario Common Rules also provides:

The tribunal may vary or waive the application of any rule or procedure, on its own initiative or on the request of a party, except where to do so is prohibited by legislation or a specific rule.

8In view of Rule A4.2, the Tribunal may vary the application of Rule 8.2 to consider a jurisdictional issue such as timeliness without requiring the respondents to file a Response to the Application. However, in the case at hand, the respondents have not requested that the Tribunal vary the application of Rule 8.2, and I see no reason to do so, in any case.

9The respondents' attention is drawn to Rule 5.5 of the Tribunal’s Rules, which reads as follows:

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.

10If a Response is not received within seven days, the Tribunal may take any or all of the steps set out in Rule 5.5.

11The Tribunal therefore makes the following order:

• By no later than one week from the date of this Interim Decision, the respondents shall file a complete Response to the Application.

12I am not seized of this matter.