Hallett v. Ontario (Health and Long Term Care), 2008 HRTO 157

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kristen Hallett

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care, Karen Stanley, Derrick Legere,

and George Smitherman

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim Date: October 14, 2008 Citation: 2008 HRTO 157 Indexed as: Hallett v. Ontario (Health and Long Term Care)

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 28, 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 25, 2008 the Tribunal scheduled a mediation for November 6, 2008. On October 8, 2008 the respondents filed their Response to the Application. The Application named the corporate respondent as the Ministry of Health and Long Term Care. The Tribunal has corrected this to properly identify the corporate respondent as Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long Term Care and has amended the style of cause accordingly.

2On October 8, 2008 the respondent wrote to the Tribunal asking that mediation be postponed pending its submissions that the Tribunal has no jurisdiction to hear this Application. Specifically, the respondents assert that there is no employment relationship between the applicant and the corporate respondent under the Health Insurance Act, R.S.O. 1990, c. H.6, as amended.

3The Tribunal’s Rules of Procedure for Applications under Section 53(3) of the Human Rights Code (Section 53(3) Rules) and the Tribunal’s Guide to Section 53(3) Applications, contemplate that the first step in a section 53(3) application is mediation. If mediation is unsuccessful, the mediator will assist the parties to complete a case management checklist (Rule 8) and the Application proceeds to a case resolution conference in accordance with Rule 9.1.

4Where a party refuses to participate in mediation as a first step, it may impede the efficient processing of the Application, in which case the Tribunal may, in its discretion, issue a case management direction (Rule 5.14) directing the parties to attend at the Tribunal to complete the matters identified in the case management checklist. In this case, however, I am satisfied the Application can be processed expeditiously without requiring such attendance.

5In the circumstances of this case, and having regard to Section 53(3) Rules, the mediation scheduled for November 6, 2008 is cancelled.

6The Tribunal is satisfied that the jurisdictional issue raised by the respondents would be best dealt with as a preliminary issue at the case resolution conference. It appears to the Tribunal that the issue of whether the relationship between the applicant and the respondents is one of employment would be better canvassed after the delivery of statements of additional facts in accordance with Rule 9.

7Accordingly, the parties are directed as follows:

a. Within 30 days following the date of this decision, the applicant shall deliver to the respondents and file with the Tribunal, a statement of any additional facts the applicant intends to rely upon and a description of the remedies sought. In addition, the applicant shall deliver to the respondents a copy of all arguably relevant documents in the applicant’s possession, except where privilege is claimed.

b. Within 45 days following the date of this decision, the respondents shall deliver to the applicant and file with the Tribunal a statement of any additional facts the respondent will rely upon and the respondents’ position with respect to the requested remedies. In addition, the respondents must deliver to the applicant a copy of all arguably relevant documents in the respondents’ possession, except where privilege is claimed. In addition the respondents must deliver its submissions with respect to the jurisdictional issue raised.

8The Tribunal will contact the parties to set a date for the case resolution conference. The parties are reminded that the Section 53(3) Rules contemplate that applications under section 53(3) of the Code be dealt with in an expedited manner.