Ababio v. Humber River Regional Hospital, 2008 HRTO 201

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cynthia Ababio

Applicant

-and-

Humber River Regional Hospital, Robert Thistle and Jill Green

Respondents

AND BETWEEN:

Cynthia Ababio

Applicant

-and-

Service Employees International Union, Local 1 Canada, Tim Oribine, Kevin Kucey and Andrea Przybio

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: October 28, 2008

Citation: 2008 HRTO 201

Indexed as: Ababio v. Humber River Regional Hospital

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

1These are two Applications filed September 17, 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 in both Applications for November 24, 2008. On October 9, 2008 the respondents filed their Responses to the Applications.

2The Applications are briefly summarized as follows:

T-00255-08: The respondents are Humber River Regional Hospital, Robert Thistle and Jill Green. The applicant alleges discrimination in employment on the basis of disability. The respondents take the position that the Application should be dismissed because the subject matter of the Application has been resolved through signed Minutes of Settlement.

T-00256-08: The respondents are the Service Employees International Union Local 1 Canada, Tim Oribine, Kevin Kucey and Andrea Przybio. The applicant alleges discrimination in vocational associations on the basis of disability. The respondents take the position that the Application should be dismissed because the subject matter of the Application has been appropriately dealt with by the Ontario Labour Relations Board.

3Section 53(4) of the Code required the Tribunal to establish rules to determine section 53(3) applications expeditiously. The Tribunal’s Rules for Applications under section 53(3) of the Code are to be interpreted and applied in a way that ensures a fair, just and highly expeditious process for the determination of these applications.

4These Applications arise out of the same circumstances, involve similar facts and appear to raise similar legal issues. Accordingly, I find, pursuant to Rules 1.1, 4.1 and 4.3 (m), that in order to ensure a fair, just and highly expeditious process for their resolution, these Applications should proceed together at this stage.

3In accordance with the statutory mandate to ensure a fair, just and highly expeditious process for the determination of these Applications, 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 (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 issues prior to mediation. Accordingly, the mediation scheduled for November 24, 2008 is cancelled.

6I make the following case management directions:

• The parties in T-0255-08 will deliver a copy of the Application and Response to the respondents in T-0256-08, within 5 days of receipt of this decision;

• The respondents in T-0256-08 are directed to provide their Response to the respondents in T-0255-08, within 5 days of receipt of this decision;

• The respondents are to deliver their submissions with respect to the preliminary issues to each other and the applicant and file them with the Tribunal within 30 days of receipt of this decision;

• The applicant may deliver any responding submissions to the respondents and file them with the Tribunal within 30 days of receipt of the respondents’ submissions; and

• The respondents may deliver any reply to each other and to the applicant and file with the within 10 days of receipt of the applicant’s submissions.

7Within 10 days of the date of this decision the parties must provide the Registrar-Transition with their availability between January 12 and 16; 19 and 23; and 26 and 30, 2009 for a one day case resolution conference to hear oral submissions with respect to the above matters.