Cynthia Thomas v. Amelin Property Management and Morris Alon, 2016 HRTO 1496

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cynthia Thomas

Applicant

-and-

Amelin Property Management and Morris Alon

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: November 23, 2016

Citation: 2016 HRTO 1496

Indexed as: Thomas v. Amelin Property Management

Introduction

1This Application is filed pursuant to section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) and alleges a contravention of settlement by the respondents.

2On September 21, 2016, the Tribunal issued a Confirmation of Receipt of an Application alleging Contravention of Settlement to the respondents. The Confirmation noted that the Application had been delivered to the respondents by the applicant on September 8, 2016, and that a Response (Form 19) was required to be filed by the respondents no later than September 19, 2016.

3On September 28, 2016, the Tribunal wrote to the parties again and advised that no Response had been received from either respondent. The latter advised that If the respondents wish to participate in this proceeding, it shall file a Response (Form 19) with the HRTO by October 5, 2016 together with an explanation of why the Response was not filed in accordance with the Rules of Procedure. If a Response is not received, the HRTO may proceed without further notice to the respondent and may take any or all of the steps set out in Rule 5.5:

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.

4To date, the respondents have not complied with these directions, have not filed a Response, or otherwise communicated with the Tribunal.

DECISION

5In 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.

6Where 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 respondents have received the Notice of Application and the further direction requiring the filing of a Response. The respondents refuse or have chosen not to participate in these proceedings.

ORDER

7For the reasons set out above, I make the following order:

a. The respondents are deemed to have accepted all of the allegations set out in the Application.

b. The respondents are deemed to have waived all rights to notice or participation in these proceedings.

c. The respondents are not entitled to further notice with respect to the Application.

NEXT STEPS

8The 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.

9Accordingly, the Tribunal will schedule a one-hour hearing by conference call to deal with any further materials the applicant may wish to rely on and hear her oral submissions if any.

10The Tribunal will issue to the applicant a Notice of Hearing setting out the date and time of the call and providing call-in instructions.

11If the applicant intends on relying on any further documents she must file them not later than 35 days after the date of this Interim Decision.

12I am not seized of this case.