Santo Barbieri v. Hamilton-Wentworth District School Board, 2008 HRTO 140

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Santo Barbieri

Applicant

-and-

Hamilton-Wentworth District School Board, Ron Mauro, John Horgan and Marg Bowman

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim
Date: October 9, 2008
Citation: 2008 HRTO 140
Indexed as: Barbieri v. Hamilton-Wentworth District School Board

Human Rights Tribunal of Ontario
655 Bay Street, 14th Floor
Toronto, ON M7A 2A3
Phone (416) 314-8419 / Fax (416) 314-8743 / Toll free 1-866-598-0322
TTY (416) 314-2379 / (toll free) 1-800-424-1168
E-mail hrto.registrar-transition@ontario.ca
Website www.hrto.ca

1This is an Application filed August 15, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). On September 18, 2008 the Tribunal scheduled a mediation for November 4, 2008. On September 30, 2008 the respondents filed their response to the Application.

2The respondents take the position that the Application should be dismissed because it is untimely within the meaning of section 34(1) of the Code and that part of the subject matter of the Application has been resolved through signed Minutes of Settlement. The respondents request, in the alternative that the Tribunal’s proceedings, including mediation, be deferred pending the outcome of an arbitration proceeding dealing with those parts of the subject matter of the Application which were not resolved.

3Section 53(4) of the Code required the Tribunal to establish rules to determine section 53(3) applications expeditiously. In accordance with this statutory mandate, the Tribunal developed a process whereby it was expected that the first step in a section 53(3) application would be mediation at an early date. If mediation were unsuccessful, the mediator would also assist the parties to complete a mediation checklist to assist in the processing of the application for hearing at a case resolution conference. This process is set out in the Tribunal’s Guide to Section 53(3) applications and the Rules of Procedure for Applications under Section 53(3) of the Human Rights Code (Rule 8).

4In this context the expectation is that most section 53(3) applications will be scheduled for mediation prior to the hearing and determination of preliminary matters. However, the Tribunal retains the discretion to control its process and will hear preliminary requests prior to the mediation in appropriate circumstances. Rule 4.1 provides that the Tribunal may exercise any of its powers under these Rules on its own initiative. Rule 4.3(d) provides that the Tribunal may determine and direct the order in which issues in a proceeding will be considered and determined.

5In this case, I find that it is appropriate to address the respondents’ preliminary objections and request to defer prior to mediation. Accordingly, the mediation scheduled for November 4, 2008 is cancelled.

6The respondents are directed to file their submissions with respect to their requests for early dismissal and/or deferral of the Application within 20 days of this decision.

7The applicant is directed to file his responding submissions, if any, to the respondents’ submissions within 30 days of receipt of the respondents’ submissions.

8The respondents are directed to file any reply within five days of receipt of the applicant’s submissions.

9The parties are directed to provide the Tribunal Registrar, within five days of the date of this decision, with their availability between December 8 and 18, 2008, for a one day case resolution conference to hear oral submissions with respect to the above matters.