On June 30, 2008, amendments to the Human Rights Code came into effect that radically changed the way human rights complaints are handled in Ontario. Specifically, individuals now have direct access to a hearing before the Human Rights Tribunal. The Human Rights Commission no longer investigates and (if appropriate) refers cases to the Tribunal. Instead, individuals can simply file their complaint (now termed an “application”) directly with the Tribunal — the result being that applications are likely to move more quickly to a hearing (and conclusion) than before.
In an effort to streamline the process, the Tribunal was granted specific remedial powers to deal with respondents who do not follow the Tribunal’s rules and/or file a response to an application. Before these changes, the Tribunal did not have the same degree of authority to penalize or take action against such respondents. The practical result of this was that employers could often simply not respond (or respond late) to applications without fear of repercussions. However, a recent Tribunal case demonstrates that this is no longer so and that there are real consequences to employers for not filing a response.
The case involved the Point Edward Casino. The complainant, Richard Le Neve, had “foot problems which [caused] pain in his feet, legs and back.” He filed an application alleging that the Casino harassed, embarrassed and discriminated against him on the grounds of disability by refusing to allow him to sit while playing at a “dice table.” Mr. Le Neve also alleged that the Casino’s practice with respect to accommodating persons with disabilities was inconsistent: some customers were permitted to sit, while others, including him, were not. As well, the policy appeared to change depending on which manager was on duty.
The Casino’s Failure to Participate — The Consequences
Mr. Le Neve’s application was sent to the Casino, and consistent with the Tribunal’s practice, included instructions to assist the Casino in completing a response. The instructions specified that the response was due in 35 days. The Casino failed to file a response.
In its decision, the Tribunal describes its new practice when a respondent fails to file a response on time:
- The Tribunal will issue a “no response” decision, which states that the respondent must file a response within seven days and explain why a response was not filed within the original 35-day timeline.
- The “no response” decision will warn the respondent of the consequences of failing to file a response, which can include the Tribunal:
- deeming the respondent to have accepted all of the allegations in the complaint;
- proceeding with the application without further notice to the respondent;
- deeming the respondent to have waived its rights to participate in the proceeding; and
- deciding the matter based only on the material/documents filed with the Tribunal by a specific date.
The Tribunal noted the importance of complaints being processed and concluded in a timely manner. It found that respondents who refuse to file a response, or choose not to, should not be able to frustrate the objects of the Human Rights Code.
In this case, the “no response” decision was sent to the Casino and the Casino failed to file a response. As a result, the Tribunal deemed the Casino to have accepted all of the facts alleged in the application and to have waived any right to participate in the proceedings.
Since the Tribunal accepted all of the facts in the application as proven, it found that the Casino had violated the Code by:
- prohibiting Mr. Le Neve from sitting while playing, which had the effect of excluding or limiting his ability to use the Casino facilities as a result of his disability3;
- demeaning and harassing Mr. Le Neve because of his disability;
- applying the “sitting” policy inconsistently; and
- providing inadequate or no training for employees on how to address disabilityrelated needs of its customers resulting in the Casino reacting in a rude, aggressive and inconsistent way towards Mr. Le Neve, simply because of his disability.
Lessons for Employers
Prior to the changes to the Code, employers could often not file a response and wait months before being contacted by the Human Rights Commission. Years could even pass before a decision would be made on whether the complaint should be referred to the Tribunal. These days are likely now over.
As this case demonstrates, the Tribunal is willing to take quick and decisive action if no response is filed. “In all but the rarest of cases, the Tribunal will deem the respondent to have waived its right to participate … and deem the respondent to have accepted all of the allegations set out in the application …”
No longer will employers be able to “roll the dice” by “sitting” on an application and/or ignoring timelines. Therefore, it is important to be diligent if you receive an application under the Code.
You should immediately investigate the matter, gather relevant documents, speak to witnesses and get in touch with legal counsel. These steps will help your organization respond efficiently and strategically to a human rights complaint by the requisite deadline.