Dorothy Lukey and Marta Pietrzyk v. David Rygier, 2017 HRTO 1030

Human Rights Tribunal of Ontario

B E T W E E N:

Dorothy Lukey and Marta Pietrzyk

Applicants

-and-

David Rygier

Respondent

INTERIM DECISION

Adjudicator: Jacek Janczur

Date: August 10, 2017

Citation: 2017 HRTO 1030

Indexed as: Lukey v. Rygier

1These are two Applications filed under s. 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging a contravention of settlement by the respondent. The applicants filed separate applications which were settled jointly.

2Both Applications arise from an alleged breach of the same Settlement and the applicants filed an Application Alleging Contravention of Settlement jointly. Accordingly, the Tribunal orders that the two files to be heard together under Rule 1.7(d) of the Tribunal’s Rules of Procedure.

3The Tribunal sent two notices to the respondent as required by the Tribunal’s Rules requesting a response to the Applications.

4The respondent did not file a Response to either Application.

5In both Applications, the Tribunal issued registrar’s letters on June 7, 2017 indicating that a Response had not been received. The respondent was directed to file Responses no later than June 15, 2017 together with an explanation for the failure to file a Response in a timely manner failing which the Tribunal may proceed without further notice to the respondent and may take any or all of the steps set out in Rule 5.5.

6Rule 5.5 of the Tribunal’s Rules of Procedure provides that:

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.

7To date the respondent has failed to comply with these Directions.

8In 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, and the rationale for that approach:

Once served with an Application, if the respondent wishes to participate and defend against the claim made by the applicant, the respondent has only to file a Response. The Tribunal provides a respondent with clear notice of what is required, and has prepared a Guide which assists a respondent in completing its Response. The Response also provides a respondent with an opportunity to indicate which facts or allegations in the Application are agreed to, and which are disputed.

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. Section 40 of the Code requires the Tribunal to dispose of Applications in a way which will provide for “a fair, just and expeditious resolution of the merits of the application.” Where no Response is filed, in order to fulfill this statutory mandate, 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 pursuant to Rule 5.5(c) and deem the respondent to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a).

9I am satisfied that the respondent has received notice of the Applications and the Tribunal’s Directions above requiring it to file his Responses. The respondent refuses or has chosen not to participate in these proceedings.

ORDER

10The Tribunal makes the following Orders:

a. The respondent is deemed to have accepted all of the allegations set out in the Applications; and

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

11Therefore, the Applications will proceed without further notice to the respondents.

NEXT STEPS

9The Tribunal went on in Kearns, above, to explain that, for several reasons, it will not generally make an order under Rule 5.5(d) (which permits the Tribunal to make a decision based upon the material filed at that point), without first providing an applicant with an opportunity to indicate whether he or she wishes to file further materials and/or make oral submissions.

10Accordingly, the Tribunal will schedule a one hour teleconference to deal with the Applications.

12If the applicants wish to rely on any further documents they are directed to file them within thirty-five days of the date of this interim decision.

13If the applicants would prefer an in person hearing they are to advise the Tribunal of this within seven days of the date of this interim decision along with any reasons in support of this request.

14I am not seized with these matters.