HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Carrie Atchison
Applicant
-and-
AND07 Consulting Ltd. and Ian McDonald
Respondents
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: Atchison v. AND07 Consulting Ltd.
1This Application alleges discrimination with respect to employment because of sex and reprisal or threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2On December 22, 2015, the Tribunal issued a Notice of Application to the respondents in which it directed that a Response be filed with the Tribunal no later than January 27, 2016. The Notice of Application was sent by regular mail and was returned as undeliverable to both the personal and corporate respondents.
3On January 28, 2016, counsel for the corporate respondent provided updated contact information for the corporate and individual respondents.
4On February 1, 2016, the Tribunal re-served the Notice of Application and Application to the respondents. The Tribunal did not receive a Response to the Application from the individual respondent nor was the Notice of Application dated February 1, 2016 returned to the Tribunal as undelivered.
5The corporate respondent filed its Response on March 7, 2016.
6On April 12, 2016, the Tribunal issued a letter to the individual respondent by courier and mail directing him to file a Response to the Application by April 26, 2016. Both letters were returned as undeliverable.
7On April 18, 2016, counsel for the corporate respondent provided the Tribunal and the applicant with an alternative mailing address for the individual respondent.
8On May 3, 3016, the Tribunal re-served the Application to the individual respondent at his updated address directing him to file a full Response to the Application before July 26, 2016 and to provide an explanation for the failure to file a Response to date. The Tribunal sent the letter by mail, courier and email. The letter was not returned. The Notice contained the following warning: “If a respondent fails to respond, he or she may lose the ability to present a defence.”
9On July 12, 2016, the Tribunal sent a reminder letter to the individual respondent directing him to file a Response to the Application before July 26, 2016 and to provide an explanation for the failure to file a Response to date. The letter again warned the respondent about the consequences of not filing a Response and the individual 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.
10To date, the individual respondent has not complied with these directions and has not filed a Response.
DECISION
11In 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.
12Where 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 individual respondent has received the Notice of Application and the further direction requiring the filing of a Response. The individual respondent refuses or has chosen not to participate in these proceedings.
ORDER
13For 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;
b. The individual respondent is deemed to have waived all rights to notice or participation in these proceedings; and
c. The individual respondent is not entitled to further notice with respect to the Application.
NEXT STEPS and order
14The applicant is ordered to file her Reply to the corporate respondent’s Response within 14 days of this Interim Decision.
15The applicant and corporate respondent have both consented to mediation. The Tribunal will schedule a half day in person mediation for the applicant and corporate respondent.
16The Tribunal will consider how best to proceed following the mediation. The Tribunal may issue directions or request further submissions, where appropriate.
17I am not seized of this matter.
Dated at Toronto, this 23^rd^ day of August, 2016.
“Signed By”
Josée Bouchard
Vice-chair