Bourgeois v. American Restaurant Services, 2017 HRTO 1063

Human Rights Tribunal of Ontario

Between:

Katherine Bourgeois Applicant

-and-

American Restaurant Services and Bala Kumar Respondents

Interim Decision

Adjudicator: Mary Truemner Date: August 15, 2017 Citation: 2017 HRTO 1063 Indexed as: Bourgeois v. American Restaurant Services

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2In an Interim Decision, 2015 HRTO 1438, the Tribunal made the following orders with respect to the personal respondent:

The [personal] respondent is deemed to have accepted all of the allegations set out in the Application;

The [personal] respondent is deemed to have waived all rights to notice or participation in these proceedings; and

The [personal] respondent is not entitled to further notice with respect to the Application.

3The Tribunal issued a subsequent Interim Decision, 2015 HRTO 1710, which added the corporate respondent as a party. The Tribunal delivered to the corporate respondent a copy of that Interim Decision, along with the Application and all other documents related to the this file on December 22, 2015, along with a direction to file a Response by within 35 days. After no Response was received, the Tribunal issued a Case Assessment Direction ("CAD"), dated July 4, 2017, directing the corporate respondent to file a Response by July 18, 2017. This CAD was sent by regular mail and courier. It was also emailed to the personal respondent, the manager for the corporate respondent. The CAD warned the corporate respondent about the consequences of failing to file a Response, pursuant to section 5.5 of the Tribunal's Rules of Procedure ("the Rules").

4The CAD was not returned as being undeliverable and the corporate respondent has still not filed a Response.

5Section 5.5 of the Tribunal's Rules states:

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 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; and

d) decide the matter based only on the material before the Tribunal.

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

Order

8For the reasons set out above, I make the following order:

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

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

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

Next Steps

9The Tribunal further stated in Kearns, above, 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.

10Accordingly, 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 intent to rely upon in support of these remedies?

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

11The 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 hearing dates, if necessary, 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; and

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

12I am not seized with this matter.