HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Karoline Bourdeau
Applicant
-and-
F8N Enterprises Operating as Lundy’s Motel, Advantage Inn, The Rex Motel at Niagara Falls Inc., Niagara Falls Courtside Inn, 2405800 Ontario Ltd. – Operating as Emerald Retirement Residence, Falcon Inn, Comfort Inn Lundy’s Lane and Kings Inn Near the Falls
Respondents
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: Bourdeau v. F8N Enterprises Operating as Lundy’s Motel
1This Application alleges discrimination with respect to goods and services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2On July 13, 2016, the Tribunal issued a Notice of Application (“the Notice”) to the respondents in which it directed that a Response be filed with the Tribunal no later than August 17, 2016. The Notice was sent by regular mail and was not returned to the Tribunal as undeliverable. The Notice contained the following warning:
If a respondent fails to respond, he or she may lose the ability to present a response.
3The respondents The Rex Motel at Niagara Falls Inc., Niagara Falls Courtside Inn, 2405800 Ontario Ltd. – Operating as Emerald Residence, Falcon Inn, Comfort Inn Lundy’s Lane and Kings Inn Near the Falls each filed Responses to the Application within timeline.
4On November 8, 2016, the Tribunal issued a No Response to Notice of Application letter (“No Response Notice”) to the respondents F8N Enterprises operating as Lundy’s Motel and Advantage Inn in which it directed that a Response be filed with the Tribunal no later than November 22, 2016. The letter again warned the respondents about the consequences of not filing a Response and directed the respondents’ attention 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.
5The respondent F8N Enterprises operating as Lundy’s Motel filed its Response before November 22, 2016. To date the respondent Advantage Inn has not complied with the Tribunal’s directions and has not filed a Response. The No Response Notice was sent by regular mail and was not returned to the Tribunal as being undeliverable.
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 an 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 Advantage Inn has received the Notice of Application and the further direction requiring the filing of a Response. The respondent Advantage Inn refuses or has chosen not to participate in these proceedings.
ORDER
8For the reasons set out above, I make the following order:
a. The respondent Advantage Inn is deemed to have accepted all of the allegations set out in the Application;
b. The respondent Advantage Inn is deemed to have waived all rights to notice or participation in these proceedings; and
c. The respondent Advantage Inn is not entitled to further notice with respect to the Application.
9I am not seized of this matter.
Dated at Toronto, this 29^th^ day of November, 2016.
“Signed By”
Josée Bouchard
Vice-chair