HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Cameron Legge
Applicant
-and-
1888751 Ontario Inc. o/a Shoeless Joe’s Sports Grill,
Shohiduzzaman Chayan, and Shoeless Joe’s Limited
Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Legge v. 1888751 Ontario Inc. o/a Shoeless Joe’s Sport Grill
WRITTEN SUBMISSIONS
Cameron Legge, Applicant
No one appearing
1888751 Ontario Inc. o/a Shoeless Joe’s Sports Grill, Respondent
No one appearing
Shohiduzzaman Chayan, Respondent
Jordan Rumanek, Representative
Shoeless Joe’s Limited, Respondent
No one appearing
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to respect to employment because of disability and reprisal.
Background
2In a Case Assessment Direction dated March 28, 2017, the Tribunal noted that the material filed with the Tribunal indicated that the individual respondent had filed a notice of proposal for bankruptcy and, as a result it was unclear if the individual respondent had legal standing to file a Response in this matter in his personal capacity. Accordingly, the Tribunal directed the individual respondent to provide a copy of the Case Assessment Direction to the trustee, and directed the trustee to provide an update to the Tribunal, copying the other parties, regarding the individual respondent’s status. The Tribunal also directed the franchisee and respondent 1888751 Ontario Inc. o/a Shoeless Joe’s Sports Grill (the “franchisee”) to file a Response to the Application by April 13, 2017. The Tribunal had earlier issued a No Response to Application letter to the franchisee dated February 28, 2017.
3On May 12, 2017, the Tribunal issued a No Response to Case Assessment Direction letter to the franchisee. The letter again warned the franchisee 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.
4The letter directed the franchisee to file a Response by May 26, 2017 together with an explanation for the failure to file a Response.
5To date, the respondent has not complied with these directions and has not filed a Response or otherwise communicated with the Tribunal.
Application Stayed as against Individual Respondent
6By letter dated May 18, 2017, the individual respondent’s trustee, Jordan Rumanek, confirmed earlier correspondence that the individual respondent had filed a proposal to his creditors under section 62 of the Bankruptcy and Insolvency Act (the “BIA”). In these circumstances, proceedings against the individual respondent are stayed pending leave of the Ontario Superior Court of Justice (Commercial List) or consent of the Trustee.
7If the applicant wishes to pursue the Application as against the individual respondent he must either bring a motion in the Superior Court to lift the stay or reach an agreement with the trustee with respect to his claim within 60 days of the date of this Interim Decision.
Direction
8The applicant is directed to advise the Tribunal whether he intends to continue to pursue this Application as against the individual respondent in writing within 30 days of the date of this Interim Decision. If the applicant fails to do so the Tribunal may deem the Application abandoned as against the individual respondent.
application to proceed without the Franchisee
9In 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.
10Where 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 franchisee has received the Notice of Application and the further direction requiring the filing of a Response. The franchisee refuses or has chosen not to participate in these proceedings.
ORDER
11For the reasons set out above, I make the following order:
a. The franchisee is deemed to have accepted all of the allegations set out in the Application; and
b. The franchisee is deemed to have waived all rights to notice or participation in these proceedings.
c. The franchisee is not entitled to further notice with respect to the Application.
12I am not seized.
Dated at Toronto, this 12th day of September, 2017.
“Signed by”
Douglas Sanderson
Vice-chair