HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ritchy Dubé

Applicant

-and-

Rockhaven Recovery Limited, Nicole Cardinal, Jerry Nolan

and Chris Jackel

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: October 27, 2008

Citation: 2008 HRTO 196

Indexed as: Dube v. Rockhaven Recovery

Human Rights Tribunal of Ontario

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Toronto, ON M7A 2A3

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[1] This is an Application dated August 27, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

[2] In the complaint filed with the Ontario Human Rights Commission, the applicant alleged discrimination in employment on the basis of disability. In his Application the applicant seeks to amend the complaint as filed with the Commission to add record of offences as a new ground of discrimination.

[3] On September 22, 2008 the Tribunal scheduled a mediation for November 17, 2008.

[4] On October 22, 2008 the respondent wrote the Tribunal refusing to participate in the mediation.

[5] On October 14, 2008 the respondents filed their Response raising two preliminary issues: challenging the proposed amendment and alleging that the substance of the Application has been appropriately dealt with in another proceeding within the meaning of section 45.1.

[6] The Tribunal’s Rules of Procedure for applications under Section 53(3) of the Human Rights Code (Section 53(3) Rules) and 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.

[7] Where 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 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.

[6] In this case, I find that it is appropriate to address the respondents’ preliminary objections prior to any mediation. Accordingly, the mediation scheduled for November 17, 2008 is cancelled.

[7] The respondents are directed to file their submissions with respect to the preliminary issues within 20 days of receipt of this decision.

[8] The applicant is directed to file any responding submissions within 20 days of receipt of the respondent’s submissions.

[9] The respondents are directed to file any reply within 10 days of receipt of the applicant’s submissions.