Allen v. 2297970 Ontario Inc., 2016 HRTO 548

Human Rights Tribunal of Ontario

B E T W E E N:

Mitchell Allen Applicant

-and-

2297970 Ontario Inc. operating as LTP Financial Respondent

INTERIM DECISION

Adjudicator: Jennifer Khurana Date: April 26, 2016 Citation: 2016 HRTO 548 Indexed as: Allen v. 2297970 Ontario Inc.

WRITTEN SUBMISSIONS

Mitchell Wayne Allen, Applicant Self-represented

Introduction

1This is a Contravention of Settlement Application filed under s.45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant alleges that the respondent has failed to pay the money agreed to in Minutes of Settlement signed by the parties on December 15, 2015 in settlement of an Application. The applicant seeks an order directing the respondent to pay the money plus additional monetary compensation for the alleged contravention.

BACKGROUND

2On March 14, 2016, the Tribunal issued a Confirmation of Receipt of Application Alleging Contravention of Settlement letter to the respondent in which it confirmed that a Response to the Application must be filed with the Tribunal no later than March 23, 2016.

3The respondent did not file a Response.

4On March 29, 2016, the Tribunal again wrote to the respondent and directed that the respondent file a Response to the Application by April 6, 2016 together with an explanation for the failure to file a Response to date.

5The letter warned the respondent about the consequences of not filing a Response and the respondent's attention was drawn 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.

6To date, the respondent has not complied with these directions and has not filed a Response or otherwise communicated with the Tribunal. The Tribunal sent its correspondence by regular mail, courier, email and fax and it was not returned as being undeliverable.

DECISION

7In 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.

8Where 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 refuses or have chosen not to participate in these proceedings.

ORDER

9For 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

10The 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.

11The Tribunal will schedule a two-hour telephone conference call hearing to hear evidence and submissions about the alleged contravention of settlement and the applicant's request for additional compensation. The applicant will deliver and file any further documents or other materials which he intends to rely on at the hearing no later than 35 days after the date of this Interim Decision.

12I am not seized of this matter.