Nakogee v. Weekashin Domco LP, 2016 HRTO 1639

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda Nakogee

Applicant

-and-

Weekashin Domco LP and Leonard Neveu

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: December 20, 2016

Citation: 2016 HRTO 1639

Indexed as: Nakogee v. Weekashin Domco LP

WRITTEN SUBMISSIONS

Linda Nakogee, Applicant

Carly Stringer, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex, sexual advances or solicitation, and reprisal.

2In a Case Assessment Direction dated December 6, 2016, the Tribunal summarized the procedural history of this matter as follows:

1] This Application was filed on February 19, 2016. The Tribunal used the addresses provided by the applicant to deliver the Application to the respondents. Only the corporate respondent filed a Response, which indicated that the personal respondent resigned from employment with the corporate respondent in August 2015. The lawyers for the corporate respondent indicated that they are not representing the personal respondent.

2The Tribunal mailed and couriered correspondence warning the personal respondent of what may happen if he doesn’t respond to the Application, but the correspondence was returned as undeliverable, with no forwarding address. Counsel for the applicant obtained from counsel for the corporate respondent the personal respondent’s last address known to the corporate respondent. The courier service and Canada Post have returned to the Tribunal as undeliverable the Tribunal’s warning letter sent to the personal respondent at the new address.

3It appears that the original and subsequent addresses provided by the applicant for the personal respondent are incorrect.

3Rule 6.6(b) provides that the Tribunal will not deal with an application in respect of a respondent who cannot be contacted at the contact information provided by the applicant. Generally, in such cases, the applicant will be required to explain what efforts were undertaken to find and verify a current address for the respondent, and explain why this contact information is believed to be the “most recent address”, see Guild v. Kyle-Jansen, 2008 HRTO 347, and Begley v. Eratostene, 2009 HRTO 235. However, in Guild, the Tribunal noted as follows:

The Tribunal must take a balanced approach in situations where a respondent has not filed a Response and there is no certainty that the respondent has received actual notice of an Application. Natural justice and fairness requires that an individual or organization named as a respondent be given notice of the proceeding and an opportunity to participate in accordance with the Tribunal’s Rules. On the other hand, there may be circumstances where a respondent purposely evades receipt of an Application or a Tribunal notice or order. In such cases, the applicant’s ability to pursue a claim of discrimination or seek enforcement of their human rights should not be frustrated by a respondent who evades service and is not prepared to respect the Tribunal’s jurisdiction as established by the Code.

4Accordingly, the Tribunal directed the applicant to confirm whether she intends to pursue the Application as against the individual respondent. If so, the applicant was directed either to confirm that the last address provided for the personal respondent is accurate, or to provide current and complete contact information for the individual respondent. The applicant was required to explain why she believes the contact information for the individual respondent is accurate. Alternatively the Tribunal directed the applicant to file an affidavit of service to the Tribunal if she is able to affect personal of the Application service on the individual respondent.

5By letter dated December 9, 2016, counsel for the applicant responded to the Case Assessment Direction. Counsel described the steps taken to obtain the address for the applicant used on the Application, 179 Wende Avenue in Timmins, Ontario and the second address, which is an address in Kapuskasing, Ontario. Counsel explained that an Information laid in October 2015 in a related criminal matter identifies the applicant as Leonard Marcel Neveu. Counsel stated that a Facebook search located a profile for Marcel Neveu. The applicant reviewed photographs available to the public on the profile and confirmed that they are pictures of the individual respondent. Counsel provided the pictures with her letter. Consequently, counsel concluded that this Facebook profile is in fact the individual respondent’s profile. Counsel stated that she sent a message to the individual respondent via Facebook asking him to either provide his current address or to confirm that he will accept personal service. Counsel had received no response as of the date of her letter to the Tribunal. Counsel submitted that the Tribunal should accept the applicant’s declaration that 179 Wende Avenue, in Timmins Ontario, is the individual respondent’s last known address and deem the respondent to have received the Application.

Analysis and Decision

6The information provided by the applicant indicates that the individual respondent lived at 179 Wende Avenue in Timmins at some point. The correspondence the Tribunal sent to both the addresses provided for the individual respondent was returned as undeliverable. Consequently, it is not clear that the individual respondent lived at that address when the Tribunal served the Application there or that he has received the Application. I am satisfied, however, that the Facebook profile for “Marcel Neveu” is that of the individual respondent and that counsel made the individual respondent aware of the Application. The individual respondent has not provided his address or arranged to be served. Accordingly, it appears that the individual respondent is evading service.

7Rule 5.5 of the Tribunal’s Rules of Procedure 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.

Order

8The Tribunal orders as follows;

1. The applicant shall deliver this Interim Decision to the individual respondent by Facebook (the Tribunal does not have access to Facebook); and,

2. Within 14 days of the date of this Interim Decision, the individual respondent shall advise the Tribunal and the other parties of his current mailing address, telephone number and e-mail address, failing which the Tribunal may deem him to have received the Application and take any or all of the steps set out in Rule 5.5.

9I am not seized.