Commodaro v. 8858268 Canada Inc., 2016 HRTO 479

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Teresa Commodaro Applicant

-and-

8858268 Canada Inc. o/a One World Buffet, Peter Andreopulous and Johnny Tsimiliotis Respondents

INTERIM DECISION

Adjudicator: Jennifer Khurana
Date: April 14, 2016
Citation: 2016 HRTO 479
Indexed as: Commodaro v. 8858268 Canada Inc.

WRITTEN SUBMISSIONS

Teresa Commodaro, Applicant Self-represented

8858268 Canada Inc. o/a One World Buffet and Peter Andreopulous, Respondents Christopher McClelland, Counsel

Johnny Tsimiliotis, Respondent No one appearing

Introduction

1This Application alleges discrimination with respect to employment because of ancestry, place of origin, ethnic origin, sex, including sexual harassment and pregnancy, sexual solicitation or advance and reprisal or threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

BACKGROUND

2On December 30, 2015, the Tribunal issued a Notice of Application ("the Notice") to the individual respondent Johnny Tsimiliotis (the "individual respondent") which directed him to file a Response with the Tribunal no later than February 3, 2016. The Notice was sent by regular mail and express post and was not returned to the Tribunal as being undeliverable. The 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.

3The personal respondent did not file a Response.

4On March 17, 2016 the Tribunal again wrote to him directing that he file a full Response to the Application before March 31, 2016 together with an explanation for the failure to file a Response to date. The letter again warned the individual respondent about the consequences of not filing a Response and drew his attention to Rule 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.

5To date the individual respondent has not complied with these directions and has not filed a Response or otherwise communicated with the Tribunal.

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 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 personal respondent has received the Notice of Application and the further direction requiring the filing of a Response. The personal respondent refuses or has chosen not to participate in these proceedings.

ORDER

8For the reasons set out above, I make the following order with respect to the individual respondent:

a. Jimmy Tsimiliotis is deemed to have accepted all of the allegations set out in the Application; and

b. Jimmy Tsimiliotis is deemed to have waived all rights to notice or participation in these proceedings.

c. Jimmy Tsimiliotis is not entitled to further notice with respect to the Application.

9I am not seized of this matter.