McCrea v. Loblaws Companies, 2008 HRTO 146

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda McCrea

Applicant

-and-

Loblaws Companies Limited, Richard Camara

and O’Neil Brown

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: October 10, 2008

Citation: 2008 HRTO 146

Indexed as: McCrea v. Loblaws Companies

Human Rights Tribunal of Ontario

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1This is an application filed August 20, 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 10, 2008 the Tribunal scheduled a mediation for November 4, 2008. On September 18, 2008 the respondents filed their response to the application.

2The respondents take the position that the Tribunal should dismiss this Application under section 45.1 on the basis that another proceeding has appropriately dealt with the substance of the application. The respondent also notes that it cannot participate in a mediation with the applicant because the applicant is represented by a trade union that has exclusive authority in respect of her terms and conditions of employment.

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 appropriate to address the respondents’ preliminary objection prior to mediation. Accordingly, the mediation scheduled for November 4, 2008 is cancelled.

6I am also satisfied that it is advisable to give the applicant’s trade union notice of this proceeding, in light the respondents’ concern about the union’s exclusive bargaining authority.

7Accordingly, a copy of this decision, the Application and the Response shall be delivered to the United Food and Commercial Workers Canada, Local 1000A (“UFCW, Local 1000A”).

8The UFCW, Local 1000A is directed to advise the Tribunal and the other parties, within five days of the receipt of this decision whether it wishes to participate in these proceedings.

9The respondents are directed to deliver and file their submissions with respect to their requests for early dismissal of the Application within 30 days of this decision.

10The applicant is directed to deliver and file any responding submissions within 30 days of receiving the respondents’ submissions.

11The respondents are directed to deliver and file any reply to the applicant’s submissions within five days of receipt of the applicant’s submissions.

12The parties (and UFCW, Local 1000A, if they desire) are directed to provide the Registrar, within 15 days of the date 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.