HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sarah Ross
Applicant
-and-
MD Diversified Inc – Synergy Landscaping, and Matt Duncan
Respondents
INTERIM DECISION
Adjudicator: Bruce Best
Indexed as: Ross v. MD Diversified Inc – Synergy Landscaping
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”). This Interim Decision addresses the fact that the respondent failed to attend the scheduled mediation, and has since failed to respond to any correspondence from the Tribunal.
2The last contact the Tribunal has received from the respondents was when the Response to the Application was filed on November 17, 2016.
3On March 1, 2017, a Notice of Mediation was sent by the Tribunal, scheduling a mediation in London for April 26, 2017. The Notice only listed the organizational respondent as a party, but was sent to the address provided in the Response, care of the individual respondent. Neither the individual respondent, nor any other representative of the organizational respondent, attended the mediation.
4On May 3, 2017, the Tribunal sent a letter with the subject line “Respondent Failure to Attend Mediation”, asking the individual respondent to confirm that the Response was filed on his behalf. There was no response.
5On May 26, 2017, the Tribunal sent an email to the individual respondent again directing him to respond to the May 3, 2017 letter. There was no response.
6Case Assessment Directions (“CADs”) were issued on July 4, 2017, and October 2, 2017 clarifying the error with respect to the naming of the parties, and giving the parties an opportunity to provide submissions on who should be named as a respondent. The applicant provided some clarification, but nothing was filed by the respondents.
7I issued a further CAD on October 25, 2017, where I clarified that the proper respondents to the Application should be MD Diversified Inc – Synergy Landscaping, and Matt Duncan, as the former had also been named as a respondent by Mr. Duncan in the Response.
8In the October 25, 2017 CAD, I also brought the respondents’ attention to Rule 5.4 of the Tribunal’s Rules of Procedure, which provides that the Tribunal may finally determine an Application without further notice to any person who cannot be contacted by the Tribunal according to the contact information they have provided. The October 2017 CAD gave the Respondents until November 9, 2017 to advise the Tribunal whether they intended to continue to participate in this proceeding. It further indicated that if they failed to do so, the Application may proceed without further notice to them.
9As of the date of this Interim Decision, the respondents have not responded to the directions in the October 2017 CAD, nor have they otherwise contacted the Tribunal. The documents referred to above have been sent to the last address provided by the respondents. The respondents have not advised the Tribunal of any change to that information, as they are required to do under Rule 1.13.
Decision
10I am satisfied that both respondents have received the Notice of Application and the further directions from the Tribunal. The respondents refuse or have chosen not to participate further in this Application.
11In Kearns v. 1327827 Ontario, 2009 HRTO 457 (“Kearns”), the Tribunal noted, after having been provided clear notice of what is required, a respondent 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 a respondent has ceased to participate, 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. In accordance with Rule 5.4, the respondents are therefore no longer entitled to notice of these proceedings.
ORDER
13For the reasons set out above, I make the following order:
a. The respondents are deemed to have waived all rights to notice or participation in these proceedings; and
b. 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 without first providing an applicant with an opportunity to indicate whether 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, including the Response?
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 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 at an oral hearing, the applicant should, before the conference call, canvass with these witnesses when they are available to testify so future dates can be scheduled during the conference call to hear their evidence;
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 at this conference call so that the Tribunal can set future dates for the receipt of evidence and/or submissions.
17I am not seized.
Dated at Toronto, this 30th day of November, 2017.
“Signed by”
Bruce Best
Vice-chair