The Perils of Remaining Silent

Written by Daniel Standing, LL.B., Content Editor, First Reference Inc.

The interim decision of Caroline Sand, Member of the Human Rights Tribunal of Ontario in 2024 HRTO 233 (CanLII) shows what can happen when a party is invited to participate but decides not to. As it turns out, the technique of putting one’s head in the sand works for ostriches but not for employers who seek to avoid liability for human rights complaints.

Background

The matter arose out of a sex-based human rights complaint by an employee against her former employer, a social club. The employer had numerous opportunities to participate but consistently chose not to engage. It initially responded to the application with a Form 2 filing (Response) but failed to participate further. Despite mediation attempts and multiple communications from the Tribunal, including reminders and invitations to case management conferences, the respondents did not respond. Even after its counsel indicated they were no longer representing them, the respondents remained unresponsive to communications from the Tribunal. Despite clear warnings and final notices offering them a chance to participate, the respondents did not reply. Their lack of engagement ultimately led to a default situation in the proceedings.

The Tribunal’s decision

Satisfied the employer received all relevant documents and notices, the Tribunal was left little choice but to conclude the employer’s absence was of its own choosing. This, in turn, led to a three-pronged ruling: the employer was deemed to have accepted the allegations made against it, it waived its right to participate, and it would receive no further notice respecting the application.

As this was an interim decision, the Tribunal scheduled a subsequent one-day hearing to consider the merits of the application.

Key takeaways

Parties’ participatory rights before administrative tribunals exist for good reason: they ensure procedural fairness by giving everyone involved a chance to be heard. With that opportunity comes risk, particularly if the respondent remains silent and fails to engage. In those situations, depending on the legislation and the Tribunal’s rules of procedure, the respondent could be deemed to have accepted the complaint, greatly lessening the applicant’s burden.

While no one is forced to play, the odds are stacked against the party who ignores the Tribunal’s invitation.