HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Deborah Latondress
Applicant
-and-
1361814 Ontario Limited o/a Waubaushene Truck Stop
and Bharat Ramji
Respondents
INTERIM DECISION
Adjudicator: Kaye Joachim
Date: November 12, 2008
Citation: 2008 HRTO 256
Indexed as: Latondress v. 1361814 Ontario Limited
Human Rights Tribunal of Ontario
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Toronto, ON M7A 2A3
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[1] This is an Application filed September 19, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondents filed their Response to the Application (Form B) on October 15, 2008. On October 29, 2008 the Tribunal set a mediation date of November 25, 2008.
[2] On November 7, 2008 the respondents declined to participate in mediation and requested that the Application be dismissed under section 45.1 of the Code on the basis that Employment Standards Branch has appropriately dealt with the substance of the Application. An appeal is pending before the Ontario Labour Relations Board.
[3] Section 53(4) of the Code required the Tribunal to establish rules to determine section 53(3) applications expeditiously. In accordance with this statutory mandate, 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 was 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 of Procedure for Applications under Section 53(3) of the Human Rights Code (Rule 8)
[4] 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.
[5] In this case, I find that it appropriate to address the respondents’ preliminary objections prior to mediation. The Tribunal makes the following orders:
a. The mediation scheduled for November 25, 2008 is cancelled.
b. The respondents shall serve and file written submissions in support of their request to dismiss under section 45.1 including any evidence and applicable caselaw, within 20 days of the date of this decision. The respondents are also directed to address the issue whether, in the alternative, the Application should be deferred, pending the hearing by the Ontario Labour Relations Board;
c. The applicant shall serve and file written submissions in response to the respondents’ submissions, including any evidence and applicable caselaw, within 20 days of receipt of the respondents’ submissions;
d. The respondents shall serve and file any reply within 5 days of receipt of the applicant’s submissions.
e. The parties are directed to provide the Tribunal with their availability to attend a three hour case resolution conference to hear the oral submissions of the parties on the matters set out above. In particular, the parties are directed to provide their availability on the following dates and times:
I. January 5th to 9th at 9:30, 12:30, 1:30 or 4:30;
II. January 12th to 16th at 9:30, 12:30, 1:30 or 4:30.
[6] I am not seized.
Dated at Toronto, this 12th day of November, 2008.
“Signed by”
Kaye Joachim
Vice Chair