White v. Craigslist, 2016 HRTO 402

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lawrence White

Applicant

-and-

Craigslist

Respondent

INTERIM DECISION

Adjudicator: David Muir Date: March 31, 2016 Citation: 2016 HRTO 402 Indexed as: White v. Craigslist

Introduction

1This Application alleges discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended.

2This Application was filed on July 16, 2015.

3The Human Rights Tribunal of Ontario (“the Tribunal”) attempted to deliver the Application to the respondent using the contact information provided by the applicant on July 29, 2015. The Tribunal’s July 29, 2015 correspondence does not appear to have been returned to the Tribunal.

4The respondent did not respond to the Application as directed to do so by September 15, 2015.

5On September 15, 2015, the Tribunal wrote to the parties to advise that the Application has been delivered as indicated above but no Response had been received. The respondent’s attention was drawn to Rule 5.5 of the Tribunal’s Rules of Procedure and directed that if the respondent wished to participate in the proceeding it must file a Response by September 29, 2015. This correspondence was sent by courier and was returned as undeliverable.

6On October 7, 2015, the Tribunal wrote to the applicant to advise that the respondent had not filed a Response to the Application and that the September 15, 2015 correspondence had been returned as undeliverable.

7The applicant was advised that the Tribunal had been unable to contact the respondent at the address provided by the applicant and his attention was drawn to Rule 6.6 (a) and (b) of the Tribunal’s Rules of Procedure which provide as follows:

a.6 An Application accepted by the HRTO for processing:

a) will be sent by the HRTO to the Respondent(s), and to any trade union, occupational or professional organization identified in the Application, at the addresses provided in the Application; or

b) will not be dealt with in respect of a Respondent or a trade union, occupational or professional organization that cannot be contacted n accordance with paragraph (a) above, and the Applicant will be so advised; […].

8The applicant was directed to provided “current, complete and accurate addresses for the respondent and explain the steps taken to ensure that the address is current, complete and accurate” by October 27, 2015. The applicant was advised that if he did not provide this information to the Tribunal by October 27, 2015 his Application may be dismissed.

9On November 3, 2015, the October 7, 2015 letter was sent to the applicant by email and he was directed to provide the requested information by November 9, 2015.

10On November 26, 2015, the applicant requested an extension of time to provide the requested information. By letter dated November 27, 2015, the Tribunal granted the request and extended the time to complete the Application to December 11, 2015.

11The applicant responded with the same contact information which the Tribunal used on July 29, 2015 and September 15, 2015.

12It was not clear at this point whether the respondent has received a copy of the Application. However it came to the Tribunal’s attention that there is an email address and a fax number for the respondent.

13As it was not clear whether the Application has been delivered to the respondents, I gave directions regarding the re-delivery of the Application to the respondent by email and fax. In doing so I noted that although Rule 1.21 of the Tribunal Rules of Procedures provides that documents cannot be delivered by email unless the party receiving the document has consented to email delivery, Rule A4.2 of the Common Rules of the Social Justice Tribunals Ontario (of which the Tribunal is a member) permits the Tribunal to vary or waive the application of any rule, except where to do so is prohibited by legislation or a specific rule. There is no such prohibition regarding the delivery of an application. Accordingly I directed that the Tribunal would make one final attempt to deliver the Application to the mailing address provided by the applicant, by fax and email.

14This final Notice of Application was delivered by regular mail, fax and email on January 29, 2016. The respondent has not responded to the Application and the time for doing so has long passed. There is no indication that any of the methods of delivery were unsuccessful.

15The Notice contained the following warning:

If you fail to respond to the Application, the HRTO may deem you to have accepted all of the allegations in the Application, deem you to have waived all rights with respect to further notice or participation in the proceeding, proceed to deal with the Application without further notice to you and decide the matter based only on the material before the HRTO.

16Rule 5.5 of the Tribunal’s Rules of Procedure which 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.

17As indicated above to date, the respondent has not complied with these directions and has not filed a Response or otherwise communicated with the Tribunal.

DECISION

18In 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.

19Where 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 further direction requiring the filing of a Response. The respondent refuse or have chosen not to participate in these proceedings.

ORDER

20For 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; and

b. The respondent is deemed to have waived all rights to notice or participation in these proceedings.

c. The respondent is not entitled to further notice with respect to the Application.

NEXT STEPS

21The 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.

22Accordingly, the Tribunal will schedule a one-hour case management conference call to set out a timetable and discuss the following:

a. Does the applicant wish to have an oral hearing or have the Tribunal decide the Application based upon written materials filed?

b. Does the applicant intend to call witnesses? Do these witnesses need to testify in person or can they give their evidence over the telephone, in writing or in some other format?

c. What documents does the applicant intend to rely upon?

d. What are the issues raised in the Application?

e. What remedies is the applicant seeking in the event that the Tribunal finds that the applicant’s rights under the Code were infringed? What evidence does the applicant intend to rely upon in support of these remedies?

f. Does the applicant plan to make any legal submissions or rely on any case law?

23The Tribunal will issue to the applicant a notice of case management conference call setting out the date and time of the call and providing call-in instructions.

• The applicant will not be required to file any materials in advance of the conference call;

• No evidence will be called or submitted at the conference call;

• However, if the applicant intends to call witnesses, the applicant should, in advance of the conference call, canvass with these witnesses when they are available to testify so that dates can be scheduled at the conference call;

• The applicant will not be expected to make legal submissions or provide case law at the conference call;

• The applicant should have a calendar at this conference call so that the Tribunal can set future dates for the receipt of evidence and/or submissions.

24I am not seized of this case.