HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Christine Generao
Applicant
-and-
Luxottica Retail Canada Inc. c.o.b. as LensCrafters, and Paragon Security
Respondents
-and-
Chris Perera
Applicant
-and-
Luxottica Retail Canada Inc. c.o.b. as LensCrafters, and Paragon Security
Interim DECISION
Adjudicator: David Muir
Indexed as: Generao v. Luxottica Retail Canada Inc.
WRITTEN SUBMISSIONS
Luxottica Retail Canada Inc. c.o.b. as LensCrafters, Respondent ) Cherrine Chow, Counsel
1These are two Application filed on June 17, 2015 pursuant to section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) On June 29, 2015, the Tribunal issued a Notice of Application to the respondents in which it directed that Responses be filed with the Tribunal no later than August 17, 2015. The respondent Luxottica Retail Canada Inc. c.o.b. as LensCrafters (“Lenscrafters”) did not comply with this Direction.
2On August 20, 2015 Lenscrafters was reminded of the Notice of Application and advised that if it wished to participate in the proceeding it must file a Response with the Tribunal by September 3, 2015. Lenscrafters did not respond to this Direction.
3In Interim Decisions 2015 HRTO 1214 and 2015 HRTO 1215 (“Interim Decisions”) Lenscrafters was determined to have failed to file a Response to the Applications. The following Orders were made in the Interim Decisions:
a. The respondent Luxottica is deemed to have accepted all of the allegations set out in the Application; and
b. The respondent Luxottica is deemed to have waived all rights to notice or participation in these proceedings.
c. The respondent Luxottica is not entitled to further notice with respect to the Application.
4Pursuant to a Request made by Paragon Security, in Case Assessment Directions were issued on December 8, 2015, the Tribunal directed that summary hearings be held to determine whether all or part of these Applications ought to be dismissed.
5A Notice of Summary Hearing was issued on January 18, 2016.
6On February 12, 2016, Lenscrafters wrote to the Tribunal to advise that the Notice of Summary Hearing was the first notice it had received of these proceeding sand asked that the Interim Decisions be set aside. The respondent filed a Request for Order During Proceeding on February 19, 2016.
7Neither the applicant nor the other respondent has responded to Lenscrafters’ Request.
8I am satisfied that the Interim Decisions should be set aside on the basis that the respondent had not, through any fault of its own, received the Notices of Application and subsequent correspondence.
9The respondent advised that the address provided by the applicant was addressed to the store where the alleged incidents occurred to the attention of an individual who is not normally present there. It also advised that its corporate head office is at another location and its address is on its website. Lenscrafters also asserted, without contradiction, that one of the applicants was in contact with the corporate head office but did not provide that information with the Applications. If the applicants had done so, asserts Lenscrafters, it would have received the Notices of Application. Lenscrafters asserts, without contradiction, that it did not receive the Notices of Application or subsequent correspondence until the Notice of Summary Hearing which was brought to its attention.
10The Interim Decisions are set aside. Lenscrafters is directed to deliver and file its Response to the Application within 28 days of the date of this Interim Decision.
CONSOLIDATION
11As these Applications appear to relate to identical facts and issues and at this stage are being scheduled together for the summary hearing it appears that it would be appropriate to consolidate these cases. Any party objecting to the consolidation of these Applications may make their submissions on the issue within seven (7) days of the date of this Interim Decision failing which the cases will be consolidated.
ORDERS
12The Tribunal makes the following Orders:
a. The Interim Decisions are set aside. Lenscrafters is directed to deliver and file its Response to the Application within 28 days of the date of this Interim Decision;
b. Any party objecting to the consolidation of these Applications may make their submissions on the issue within seven (7) days of the date of this Interim Decision failing which the cases will be consolidated.
Dated at Toronto, this 18th day of March, 2016.
“Signed by”
David Muir
Vice-chair