HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Brenda Geller
Applicant
-and-
Signarama Canada Inc. and National Franchise Group Inc.
Respondents
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Geller v. Signarama Canada Inc
1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
BACKGROUND
2In her Application the applicant identified as the respondent B & G Visual Solutions Inc. aka Signarama.
3On January 18, 2016, the Tribunal issued a Notice of Application (“the Notice”) to the identified respondent in which it directed that a Response be filed with the Tribunal no later than February 22, 2016. The Notice was sent by regular mail and was not returned to the Tribunal as being undeliverable.
4The identified respondent did not file a Response.
5On March 3, 2016, the Tribunal wrote again to the parties directing that the identified respondent file a full Response to the Application before March 17, 2016, together with an explanation for the failure to file a Response to date.
6The identified respondent did not comply with these directions.
7In Interim Decision 2016 HRTO 437, issued on April 7, 2016, the identified respondent was declared in default and a conference call with the applicant was directed.
8Subsequently the applicant filed a Request for Order During Proceeding (“Request”) seeking to substitute the identified respondent above with Signarama Canada Inc. The applicant argued that the respondent is correctly identified as Signarama Canada Inc. and not B & G Visual Solutions Inc. aka Signarama.
9At a case management conference call, I inquired of the applicant’s representative whether it was a possibility that the respondent had not been delivered with the Application. It was suggested that a corporate search had indicated that the address for the proposed respondent was a good one; however, in the circumstances the applicant requested an adjournment of up to 30 days to confirm that proper contact information had been provided.
10In Interim Decision 2016 HRTO 1026, the Tribunal granted the Request to amend the Application and add Signarama Canada Inc. to the Application subject to any submissions it might make, and the title of proceeding was amended accordingly.
11The Application was also held in abeyance for a period of up to 30 days pending the applicant’s confirmation that the proper respondent is in fact Signarama Canada Inc. and that it should have received the materials in this case. This period was extended at the request of the applicant.
12On January 10, 2017, the applicant filed a Request seeking to confirm the addition of Signarama Canada Inc. and to add National Franchise Group Inc. as an additional respondent. The applicant also requested the removal of B & G Visual Solutions Inc. aka Signarama.
13With her Request, the applicant filed a Form 23 indicating that the Request had been delivered to these two proposed respondents at an address provided in the Request. Neither proposed respondent responded to the Request.
14In Interim Decision 2017 HRTO 388 the Tribunal confirmed the identity of the respondents and amended the style of cause as set out above.
15A copy of the Application was provided to these respondents with the Interim Decision. The respondents were directed that if they wished to participate in this Application they must deliver and file a Response to this Application within 35 days of the date of the Interim Decision.
16Nether respondent has filed a Response or otherwise been in contact with the Tribunal.
17In a Case Assessment Direction issued on May 24, 2017 the following directions were made:
If the respondents wish to participate further in this proceeding they are directed to file full Response to the Application within 14 days of the date of this Case Assessment Direction, together with an explanation of their failure to do so as directed, failing which the Tribunal may exercise any of the powers provided for in Rule 5.5 of the Tribunal’s Rules of Procedure with 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.
18None of the identified respondents have delivered a Response to the Application and the time for doing so has passed.
DECISION
19In Kearns v. 1327827 Ontario, 2009 HRTO 457, at paras. 11 to 14, 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, and the applicant’s rights to assert a claim and seek a timely determination of that claim.
20Where 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 has refused or has chosen not to participate in these proceedings.
ORDER
21For 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.
c. The respondent is not entitled to further notice with respect to the Application.
NEXT STEPS
22The 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.
23Accordingly, 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?
24The Tribunal will issue a notice of case management conference call setting out the date and time of the call and providing call-in instructions to the applicant.
The applicant will not be required to file any materials in advance of the conference call;
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.
25I am not seized of this case.
Dated at Toronto, this 18th day of July, 2017.
“Signed by”
David Muir
Vice-chair