E.T. v. Dress Code Express Inc., 2016 HRTO 634

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

E.T., as represented by her litigation guardian, P.B.

Applicant

-and-

Dress Code Express Inc., 1674977 Ontario Inc., Bunty Islam and Saef Islam

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: May 11, 2016

Citation: 2016 HRTO 634

Indexed as: E.T. v. Dress Code Express Inc.

Introduction

1This Application alleges discrimination with respect to employment because of race, colour, ancestry, ethnic origin, sex and association 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 letter to the respondents in which it confirmed that a Response to the Application must be filed with the Tribunal no later than February 3, 2016.

3The respondents did not file a Response.

4On January 20, 2016, the Tribunal issued a second Notice of Application to the parties, as the initial December 30, 2015 Notice of Application was returned as undeliverable by Canada Post and marked as "Box full, return all mail."

5On March 3, 2016, the Tribunal issued a No Response to Notice of Application via courier to the respondents. The Tribunal directed that the respondents file a Response to the Application by March 17, 2016, together with an explanation for the failure to file a Response to date.

6The letter warned the respondents about the consequences of not filing a Response and the respondents' 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

7On April 7, 2016, the Tribunal issued to the applicant a Request to Confirm Address for Delivery letter.

8On April 11, 2016, the applicant provided potential alternate contact information for the respondents.

9The Tribunal wrote to the respondents again on April 14, 2016, this time at the alternate addresses, and again drew the respondents' attention to Rule 5.5, as set out in paragraph 6, above.

10As of the date of this interim decision, the respondents have not complied with these directions, filed Responses or otherwise communicated with the Tribunal, nor has the Tribunal's correspondence, dated January 20, March 3,or April 14, 2016 been returned. The Tribunal sent its correspondence by regular mail and courier.

DECISION

11In 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.

12Where 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 respondents have received the Notices of Application and the further direction requiring the filing of Responses. The respondents refuse or have chosen not to participate in these proceedings.

ORDER

13For the reasons set out above, I make the following order:

a. The respondents are deemed to have accepted all of the allegations set out in the Application; and

b. The respondents are deemed to have waived all rights to notice or participation in these proceedings.

c. The respondents are not entitled to further notice with respect to the Application.

NEXT STEPS

14The 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.

15Accordingly, 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?

16The Tribunal will issue a notice of case management conference call setting out the date and time of the call and providing call-in instructions to the applicant.

• 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.

17I am not seized of this matter.