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Human Rights Tribunal of Ontario
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**Between:**
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AM
Applicant
-and-
Windermere Manor Ltd., University of Western Ontario and Neil Kellock
Respondents
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Interim Decision
**Adjudicator:** Naomi Overend
**Date:** December 30, 2015
**Citation:** 2015 HRTO 1748
**Indexed as:** AM v. Windermere Manor Ltd.
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## Introduction
[1] This Application alleges discrimination with respect to employment because of sex and sexual solicitation contrary to the [Human Rights Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html), R.S.O. 1990, c. H.19, as amended (the “Code”).
## BACKGROUND
[2] On July 30, 2015, the Tribunal issued a Notice of Application (“the Notice”) to the respondents in which it directed that a Response must be filed with the Tribunal no later than September 4, 2015. Both organizational respondents filed Responses, but the individual respondent, Neil Kellock, did not.
[3] The applicant was asked to confirm the individual respondent’s address, and provided a new address to the Tribunal. A new Notice was sent by courier to this address 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.
[4] Neil Kellock, the individual respondent, did not file a Response by November 20, 2015, the deadline in the Notice.
[5] On December 3, 2015, the Tribunal wrote to the individual respondent directing him to file a full Response to the Application before December 17, 2015, together with an explanation for the failure to file a Response to date. The letter again warned the individual 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 states:
> 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.
[6] To date, the individual respondent has not complied with these directions and has not filed a Response or otherwise communicated with the Tribunal.
## DECISION
[7] In [Kearns v. 1327827 Ontario, 2009 HRTO 457](https://www.minicounsel.ca/hrto/2009/457), at paras. [11 to 14](https://www.minicounsel.ca/hrto/2009/457), 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](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html), and the applicant’s rights to assert a claim and seek a timely determination of that claim.
[8] Where 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, Neil Kellock, refuses or has chosen not to participate in these proceedings.
## ORDER
[9] For the reasons set out above, I make the following order:
a. The individual respondent is deemed to have accepted all of the allegations set out in the Application; and
b. The individual respondent is deemed to have waived all rights to notice or participation in these proceedings.
c. The individual respondent is not entitled to further notice with respect to the Application.
[10] I am not seized of this matter.
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Dated at Toronto, this 30th day of December, 2015.
“Signed by”
__________________________________
Naomi Overend
Vice-chair
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minicounsel