HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Kupiec

Applicant

-and-

Starburst Coin Machines Inc. and Len Keywood

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: November 12, 2008

Citation: 2008 HRTO 257

Indexed as: Kupiec v. Starburst Coin Machines

Human Rights Tribunal of Ontario

655 Bay Street, 14^th 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 October 9, 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 October 17, 2008 the Tribunal scheduled mediation for December 10, 2008. On October 27, 2008 the respondents advised that they were unable to attend mediation that day due to a prior commitment. On November 7, 2008 the respondents filed their Response to the Application (Form B).

2The respondents indicated that a civil court action has been commenced, which pleads a violation of the Code and seeks damages for the alleged violation of the Code. A copy of the statement of claim was filed with the Tribunal as part of the Response. The respondents submitted that the Application is barred by section 34(11)(a) of the Code.

3Section 34(11) of the Code provides, in part:

(11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn….

[4] 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.

5As a result, the Tribunal determines that it is appropriate to determine the issue whether this Application is barred by virtue of section 34(11) of the Code at this stage of the proceedings.

6The Tribunal makes the following Order:

a. Within 20 days of the date of this decision, the applicant shall deliver to the respondents and file with the Tribunal submissions on whether this Application is barred by virtue of section 34(11) of the Code, and whether the Tribunal has jurisdiction to deal with the merits of this Application;

b. Within 20 days of the receipt of the applicant’s submissions, the respondents shall deliver to the applicant and file with the Tribunal their response to the applicant’s submissions on jurisdiction;

c. Within 10 days of receipt of the respondents’ submissions, if any, the applicant may deliver and file a reply.

7The Tribunal may determine this matter on the basis of the written submissions alone.