The consequences of failing to respond to an Application under the Human Rights Code (the “Code”) or to correspondence from the Human Rights Tribunal of Ontario (“HRTO”) are severe. I’ve written about this a number of times and a recent case illustrates the point.
The Application involved an allegation of discrimination with respect to good, services and facilities and with respect to employment contrary to the Code. An individual who was identified in the Application as the contact person for the respondent, purported to file a Response on his own behalf as an individual respondent notwithstanding that he was not named as a respondent to the Application. The respondent never filed a Response to the Application.
On September 25, 2019 the HRTO wrote to the respondent giving it until October 9, 2019 to file a Response to the Application. A failure to do so, might result in the HRTO:
a) deeming the Respondent to have accepted all of the allegations in the Application;
b) proceeding to deal with the Application without further notice to the Respondent;
c) deeming the Respondent to have waived all rights with respect to further notice or participation in the proceeding;
d) deciding the matter based only on the material before the Tribunal.
No Response was received by the HRTO.
The HRTO observed that:
In 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.
Where 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 respondent has received the Notice of Application and the further direction requiring the filing of a Response. The respondent refuse or have chosen not to participate in these proceedings.
As a result and for purposes of the Farmer case:
a. The respondent is deemed to have accepted all of the allegations set out in the Application; and
b. The respondent is deemed to have waived all rights to notice or participation in these proceedings.
c. The respondent is not entitled to further notice with respect to the Application.
The Applicant was asked to answer the following questions within 35 days of the date of the decision:
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 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?
Where a respondent doesn’t respond to an Application in accordance with the HRTO Rules of Procedure and directives or engage once the HRTO has provided notice of the consequences of continuing to fail to file a response, the consequences are significant and stem at least in some part, as the HRTO notes in Kearns, from a desire to ensure that a respondent is not able to frustrate the important objects of the Code.