Vaya v. Smith Business Solutions Inc., 2017 HRTO 1315

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vinay Vaya

Applicant

-and-

Smith Business Solutions Inc., Boomco Décor Inc. o/a Whitby La-Z-Boy, and Robert Ley

Respondents

INTERIM DECISION

Adjudicator: Bruce Best

Date: October 5, 2017

Citation: 2017 HRTO 1315

Indexed as: Vaya v. Smith Business Solutions Inc.

1This Application was filed under s.34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) on September 23, 2016 against the respondent Smith Business Solutions Inc. (“Smith Business”). Smith filed a full Response on November 30, 2016, naming two additional respondents, Boomco Décor Inc. o/a Whitby La-Z-Boy (“Boomco”) and Robert Ley (“Ley”).

2The Application and Smith Business’ Response were mailed on January 4, 2017 to Boomco and Ley.

3As Ley did not filed a Response by February 8, 2017, on February 28, 2017 the Tribunal sent a letter to Ley stating, in part:

An Application to the HRTO starts a legal proceeding. A finding that a violation of the Code has occurred may lead to various orders, including monetary compensation, other forms of restitution to the applicant, and orders to take action to promote compliance with the Code. Failure to file a Response or participate in a HRTO proceeding may lead to orders against individual and corporate respondents without their participation.

4The letter also drew Ley’s attention to Rule 5.5 of the Tribunal’s Rules of Procedure, which states:

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.

5The letter advised Ley that if he did not file a Response by March 14, 2017, the Tribunal may take any or all of the steps set out in Rule 5.5.

6The deadline for both Boomco and Ley to file their Responses was extended twice, once by letter dated March 3, 2017, and another by letter dated March 20, 2017.

7On March 22, 2017, I issued a Case Assessment Direction (“CAD”) refusing a request to dismiss the Application. I further confirmed that Boomco and Ley were required to file their Response by April 10, 2017. Boomco complied with this direction. Ley did not.

8On July 17, 2017, the Application and Responses were sent again to Ley by courier, and were delivered and signed for on July 18, 2017.

9As of today’s date, Ley has not complied with the direction to file a Response, and has not otherwise communicated with the Tribunal.

DECISION

10In 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.

11Where a respondent does not file a Response, the Tribunal will proceed to determine the Application in the absence of that respondent. In all but the rarest of cases, the Tribunal will deem a respondent who fails to file a Response to have waived the right to participate in the proceeding, and deem the respondent to have accepted all of the allegations set out in the Application.

12I am satisfied that the individual respondent has received the Notice of Application and the Responses, and the directions requiring him to file a Response. He has been contacted by the Tribunal on six separate occasions, by regular mail and courier, none of which have been returned undeliverable. The individual respondent, Robert Ley, refuses or has chosen not to participate in these proceedings.

ORDER

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

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

b. The individual respondent Robert Ley is deemed to have waived all rights to participation in these proceedings; and

c. The individual respondent Robert Ley is not entitled to further notice with respect to the Application.

14I am not seized.