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Human rights tribunal dismisses worker’s sexual harassment claim after repeated failed attempts to notify respondent

by HR Law Canada

The Ontario Human Rights Tribunal has dismissed an application alleging employment discrimination based on sex, including sexual harassment, due to its inability to establish contact with the respondent.

The case, which originated on August 24, 2018, faced a significant procedural challenge as repeated attempts to deliver a Notice of Application to the respondent, Stacked Pancake House, were unsuccessful.

Despite the applicant’s claims, the Tribunal was consistently unable to reach the respondent. The Notice, initially issued on Sept. 19, 2018, and subsequently re-issued multiple times over the years, was returned marked as “unclaimed” on several occasions.

The applicant was directed to provide up-to-date and accurate addresses for the respondent, which she confirmed were correct. However, notices sent to these addresses, including the one updated in November 2019, failed to elicit any response.

The Tribunal, adhering to its procedural fairness and natural justice principles, emphasized the importance of ensuring that respondents are given notice of proceedings and the opportunity to participate. Rule 6.6 of the Tribunal’s Rules of Procedure states that applications should be sent to respondents at the provided addresses. However, if a respondent cannot be contacted, the Tribunal may not proceed with the application.

“Natural justice and fairness require that an individual or organization named as a respondent be given notice of the proceeding and an opportunity to participate in accordance with the Tribunal’s Rules,” said vice-chair Aslam Daud, who signed the ruling.

“On the other hand, there may be circumstances where a respondent purposely evades receipt of an application or a Tribunal notice or order. In such cases, the applicant’s ability to pursue a claim of discrimination or seek enforcement of their human rights should not be frustrated by a respondent who evades service and is not prepared to respect the Tribunal’s jurisdiction as established by the Code.”

This decision aligns with previous rulings in similar cases, where the responsibility of providing accurate contact information lies with the applicant. The Tribunal has the authority to dismiss an application if it cannot establish contact with the respondent, as in the Guild v. Kyle-Jansen and Osman v. Elle Productions Security cases.

In light of these challenges and following “exhaustive” attempts to serve the Notice, the Tribunal, led by Vice-chair Aslam Daud, concluded that proceeding with the application would be impractical.

A non-contactable entity cannot be held accountable for an alleged Code violation, rendering any potential remedial order moot, it said.

For more information, see Clayton v. Stacked Pancake House, 2023 HRTO 1699 (CanLII)

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