Human Rights Tribunal of Ontario
B E T W E E N:
Desiree Caron Applicant
-and-
Stackhouse Pizza and Sub Co. Respondent
INTERIM DECISION
Adjudicator: Dawn J. Kershaw
Date: February 18, 2015
Citation: 2015 HRTO 214
Indexed as: Caron v. Stackhouse Pizza and Sub Co.
Introduction
1This Application alleges discrimination with respect to employment because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2On December 2, 2014, 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 not later than January 20, 2015. There was no response from the respondent.
3On January 28, 2015, the Tribunal sent a letter to the respondent confirming it had not received a Response from the respondent. The letter advised that an application to the Tribunal starts a legal proceeding. It further:
a. advised the respondent that 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;
b. advised the respondent that failure to file a response or participate in a Tribunal proceeding may lead to orders against the respondent without its participation;
c. drew the respondent's attention to Rule 5.5 of the Tribunal's Rules of Procedure.
4None of the Tribunal's mail to the respondent has been returned.
Decision
5In Kearns v. 1327827 Ontario, 2009 HRTO 457 at paragraphs 11-14, the Tribunal set out its approach in circumstances where a respondent fails to file a Response after having been cautioned, and the rationale for that approach:
The Code is an important public statute which enshrines our most basic and fundamental rights and freedoms. The enforcement procedures in the Code are equally important, since without an effective means of claiming a violation of a right, and seeking redress where a violation is found, those fundamental human rights would have little meaning.
The procedures established by the Tribunal's Rules of Procedure provide a mechanism to resolve disputes arising under the Code fairly and expeditiously. An individual who believes his or her rights have been infringed may bring an Application. That Application must be complete and set out the allegations which, in the applicant's view, constitute a violation of the Code. Before serving an Application on the person or organization named as a respondent, the Tribunal will review the Application to ensure that it is complete and that it appears to be within the jurisdiction of the Code.
Once served with an Application, if the respondent wishes to participate and defend against the claim made by the applicant, the respondent has only to file a Response. The Tribunal provides a respondent with clear notice of what is required, and has prepared a Guide which assists a respondent in completing its Response. The Response also provides a respondent with an opportunity to indicate which facts or allegations in the Application are agreed to, and which are disputed.
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 right to assert a claim and seek a timely determination of that claim. Section 40 of the Code requires the Tribunal to dispose of Applications in a way which will provide for "a fair, just and expeditious resolution of the merits of the application." Where no Response is filed, in order to fulfill this statutory mandate, 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 pursuant to Rule 5.5(c) and deem the respondent to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a).
6I am satisfied the respondent has received notice of the Application and the Tribunal's correspondence directing it to file a Response. The respondent refuses, or has chosen not to, participate in these proceedings.
Order and Direction
7I make the following order:
The respondent is deemed to have waived all rights to notice or participation in these proceedings and to have accepted all of the allegations set out in the Application.
8I direct as follows:
The applicant is directed to submit, within 28 days of this Interim Decision, any additional materials, evidence and written submissions she wishes the Tribunal to consider in deciding this Application;
The applicant is also required to advise the Tribunal in writing, within 28 days of this Interim Decision, whether she wishes or does not wish to make oral submissions via conference call before the Tribunal finally determines the Application;
If the applicant advises that she does not wish to make oral submissions, the Tribunal will finally determine the Application, including deciding the appropriate remedy, based only on the materials before the Tribunal that are filed by the applicant; and
If the applicant advises that she wishes to make oral submissions in addition to the submission of documentary materials and submissions, the Tribunal will schedule a one hour conference call.
9I am not seized of this matter.
Dated at Toronto, this 18^th^ day of February, 2015.
"Signed by"
__________________________________
Dawn J. Kershaw
Vice-chair