Sonya McIlravey v. Vincent Salon and Spa, 2008 HRTO 163

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sonya McIlravey

Applicant

-and-

Vincent Salon and Spa, Vincent Castano and Kelly Castano

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: October 16, 2008

Citation: 2008 HRTO 163

Indexed as: McIIravey v. Vincent Salon and Spa

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 September 18, 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 that day the Tribunal scheduled a mediation for November 10, 2008.

2The respondents have not yet filed their Response to the Application which was due 35 days after they received the Application. On October 1, 2008 respondents’ counsel wrote to advise that the respondents do not consent to participate in the scheduled mediation.

3The parties’ attention is drawn to Rule 3.2 of the Tribunal’s Rules of Procedure for Applications under Section 53(3) of the Human Rights Code:

3.2 Where an Application (Form A) is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application, including the allegations set out in the complaint;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal.

4The 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 a 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.

5Where a party refuses to attend the mediation, 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 and with the delivery and filing of Response as directed below.

6In the circumstances of this case, and having regard to the Tribunal Guide and Section 53(3) Rules, the mediation scheduled for November 10, 2008 is cancelled. The Tribunal will proceed to the next step in the process, which is to prepare for a case resolution conference in accordance with Rule 9.

7Accordingly, the parties are directed as follows:

a. The respondents shall deliver to each other and the applicant and file the Response to the Application in accordance with Rules 7.1 and 7.2 by the end of business Friday October 24, 2008. Failure to file the Response within this time may result in the Tribunal making orders against the respondents in accordance with Rule 3.2.

b. 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.

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

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.