Pando v. Colleges of Applied Arts and Technology Pension Plan, 2008 HRTO 239

Human Rights Tribunal of Ontario

B E T W E E N:

Robert Pando Applicant

-and-

Colleges of Applied Arts and Technology Pension Plan, Phil Cunnington, Paul Owens and Daniel Hayhurst Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: November 6, 2008 Citation: 2008 HRTO 239 Indexed as: Pando v. Colleges of Applied Arts and Technology Pension Plan

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 on September 8, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). In accordance with its usual practice, on September 27, 2008 the Tribunal sent out to all parties a confirmation of receipt of this Application and a notice scheduling mediation for November 14, 2008. While under the expedited procedures adopted for s. 53(3) transition cases, the initial mediation date is scheduled without consultation with the parties, all parties were notified that the mediation date could be changed for important reasons and were afforded ten days to advise the Tribunal in writing if any party was not available for mediation on that date. No objection to the mediation date was filed by any party.

2Under Rule 7 of the Tribunal's Rules of Procedure for applications under Section 53(3) of the Human Rights Code (the "Section 53(3) Rules"), a response to a section 53(3) application is to be filed within 35 days of delivery of the application. The applicant's statements of delivery indicate that the application was mailed out to the respondents on August 30, 2008, such that delivery under the Tribunal's Rules would have been effected on September 4, 2008. Accordingly, the respondents' Response should have been filed by October 9, 2008. No Response was received by that date.

3Instead, on October 16, 2008, counsel for the respondents wrote to counsel for this Tribunal to inform her that the applicant also had commenced proceedings which were currently before the Financial Services Tribunal ("FST") of the Financial Services Commission of Ontario and which the respondents allege raise overlapping issues of fact and law. The respondents expressed the view that it was important for the FST proceedings to be heard before this Tribunal hears the s. 53(3) application, and requested Tribunal counsel's consent to a deferral or stay of the s. 53(3) application. Counsel for the Tribunal has no jurisdiction to provide any such consent, which is a matter for adjudication by a Vice-Chair or member of this Tribunal.

4On October 24, 2008, the respondents filed their Response to the Application, which included a request to dismiss the Application. However, the request to dismiss the Application was based upon the former section 34(1) of the Ontario Human Rights Code, which is no longer in force and does not apply to the Tribunal or to a section 53(3) application.

5On November 3, 2008, the Tribunal sent out a revised notice of mediation which converted the in-person mediation that had been scheduled for November 14, 2008 into a mediation by telephone conference for that same date.

6On November 5, 2008, counsel for the respondents wrote to the Registrar-Transition for the Tribunal to advise that their client had instructed them to proceed with an application for judicial review to seek a stay of the proceedings before this Tribunal, with an attendance before Justice Campbell scheduled for Monday, November 10, 2008. The respondents request the Registrar's consent to a deferral or stay of the section 53(3) application until final determination of the FST proceedings and a postponement of the mediation scheduled for November 14, 2008 until such time as the judicial review proceeding can be heard.

7Neither the Registrar nor Tribunal counsel have the power or authority to "consent" to a deferral or stay of a Tribunal proceeding. As stated above, this is an adjudicative decision that needs to be made by a Vice-Chair or member of the Tribunal.

8Section 45 of the Code provides that "the Tribunal may defer an application in accordance with the Tribunal rules". While there is no specific provision in the Section 53(3) Rules that addresses a request to defer, the Tribunal retains the discretion to control its own process and to take any action that it determines is appropriate to ensure the fair, just and expeditious resolution of a section 53(3) application: Rule 4.3(m). This includes the ability to make a determination whether to defer a section 53(3) application on the basis of a proceeding in another forum that raises overlapping issues.

9In reality, what the respondents are seeking is not the "consent" of Tribunal staff to a deferral or stay of the Application, but an adjudicative determination by the Tribunal as to whether the Application should be deferred in light of the ongoing FST proceedings. In order to make this adjudicative determination, the Tribunal requires written submissions from the parties in accordance with the following schedule:

a. The respondents shall serve and file written submissions in support of their request to defer, including any evidence and applicable caselaw, by no later than Friday, November 21, 2008;

b. The applicant shall serve and file written submissions in response to the respondents' request, including an evidence and applicable caselaw, by no later than Friday, December 5, 2008;

c. The respondents shall serve and file any reply by no later than Friday, December 12, 2008.

10In light of the Tribunal's need to address this preliminary issue, the telephone mediation scheduled for November 14, 2008 is cancelled.