HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sandra Hinschberger
Applicant
-and-
2180289 Ontario Ltd. o/a Benny’s Restaurant and Lounge
Respondent
INTERIM DECISION
Adjudicator: Bruce Best
Indexed as: Hinschberger v. 2180289 Ontario Ltd. o/a Benny’s Restaurant and Lounge
WRITTEN SUBMISSIONS
Sandra Hinschberger, Applicant
Self-represented
2180289 Ontario Ltd. o/a Benny’s Restaurant and Lounge, Respondent
No one appearing
Introduction
1This Application alleges that the respondent has contravened a settlement entered into between the parties contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
Background
2On March 22, 2016, the Tribunal issued a Confirmation of Receipt of a Contravention of Settlement Application to both parties, in which it directed that a Response to the Application must be filed with the Tribunal no later than April 4, 2016. The Application was sent to the respondent at the address provided by the applicant.
3The applicant subsequently filed correspondence from Mr. Constantine “Dino” Damianakis, who was the signatory to the settlement on behalf of the respondent, acknowledging receipt of the Application and indicating that all further inquiries with respect to the Application should be directed to a trustee in bankruptcy, Welker & Associates.
4The Tribunal sent a further letter dated July 13, 2016 to the respondent, care of the trustee. The trustee responded by letter also dated July 13, 2016 indicating that it was only the trustee for the bankrupt estate of Constantine Damianakis personally, that it was not representing “2180289 Ontario Ltd. o/a Benny’s Restaurant”, and that it took no position on this Application.
5Any proceedings seeking monetary remedies from a respondent who has made an assignment in bankruptcy under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (“BIA”), are subject to the stay set out in section 69 of the BIA. As such they are prevented from proceeding. See, for example, Trowell v. 6286160 Canada, 2010 HRTO 859.
6It appears that Mr. Damianakis has personally made an assignment in bankruptcy and would be protected by the above provisions of the BIA. The respondent in this case, however, is not Mr. Damianakis. There is no indication that the respondent, 2180289 Ontario Ltd. o/a Benny’s Restaurant and Lounge, has filed an assignment in bankruptcy or is otherwise legally exempt from responding to this Application.
7A Case Assessment Direction (“CAD”) was issued on July 25, 2016 advising the respondent that if it wished to participate in the Application, it must file a Response with the Tribunal by August 2, 2016. The CAD further warned the respondent that if it failed to file a Response, the Application could proceed without further notice to it, and that the Tribunal could take any of the steps listed in Rule 5.5 of the HRTO’s Rules of Procedure, which reads as follows:
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.
8A copy of the CAD was also sent to Welker & Associates, the trustee in bankruptcy for Constantine Damianakis.
9To date, the respondent has not filed a Response or otherwise communicated with the Tribunal.
DECISION
10In Kearns v. 1327827 Ontario, 2009 HRTO 457 (“Kearns”), 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.
11Where 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 CAD requiring the filing of a Response. The respondent refuses or has chosen not to participate in these proceedings.
ORDER
12For 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 for Contravention of Settlement;
b. The respondent is deemed to have waived all rights to notice or participation in these proceedings; and,
c. The respondent is not entitled to further notice with respect to the Application for Contravention of Settlement.
NEXT STEPS
13The 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.
14Accordingly, the Registrar will scheduled a one hour conference call in order to allow the applicant to make oral submissions as to whether the January 4, 2016 Minutes of Settlement have been breached, and with respect to the appropriate remedy in the circumstances. If the applicant wishes to rely upon any facts, case law or documents that are not already before the Tribunal in this Application for Contravention of Settlement, the applicant shall file these materials with the Tribunal no later than 14 days before the date of the scheduled conference call hearing.
15I am not seized.
Dated at Toronto, this 13th day of December, 2016.
“Signed By”
Bruce Best
Vice-chair