Roth v. Cassin, 2016 HRTO 1202

Human Rights Tribunal of Ontario

B E T W E E N:

Sherry Roth

Applicant

-and-

Eddy Cassin

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: September 13, 2016

Citation: 2016 HRTO 1202

Indexed as: Roth v. Cassin

1This Application alleges that the Respondent breached a settlement entered into by the parties on June 12, 2016.

BACKGROUND

2On July 20, 2016, the Tribunal delivered a copy of the Application to the respondent and directed that a Response must be filed with the Tribunal no later than August 1, 2016. The letter was sent by regular mail and was not returned to the Tribunal as being undeliverable.

3The respondent did not file a Response.

4On August 22, 2016 the Tribunal wrote again to the parties directing that the respondent file a Response to the Application before September 5, 2016 together with an explanation for his failure to file a Response in accordance with the Tribunal’s previous letter. The August 22, 2016 letter, was sent by mail, e-mail and courier. It warned the respondent about the consequences of not filing a Response and it drew the respondent's attention to Rule 5.5 of the Tribunal’s Rules of Procedure which 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.

5To date, the respondent has not complied with these directions and has not filed a Response or otherwise communicated with the Tribunal.

DECISION

6In 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.

7Where 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.

8I am satisfied that the respondent has received the Notice of Application and the further direction requiring the filing of a Response. The respondent refuses to participate or has chosen not to participate in this proceeding.

ORDER

9For 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; and

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

10The 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.

11It is unclear from the applicant’s breach of settlement Application whether the personal respondent paid her any of the money he agreed to pay her under the Minutes of Settlement. Within 14 days of this Interim Decision, the applicant must write to the Tribunal to clarify the following:

a. Whether the respondent paid her any of the amount he agreed to pay her under the settlement.

b. What remedy she is seeking for the breach of settlement.

c. Whether she wishes to make oral submissions in support of her breach of settlement Application or whether she waives her right to make oral submissions and instead relies solely upon her written submissions.

12I am not seized of this matter.