Lloyd v. Novopharm, 2008 HRTO 320

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dionne Lloyd

Applicant

-and-

Novopharm Limited, Dan Phillip and Robert Santa

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: November 28, 2008

Citation: 2008 HRTO 320

Indexed as: Lloyd v. Novopharm

1This is an Application filed October 15, 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 Tribunal scheduled mediation on December 19, 2008. The Respondents filed a Response (Form B) on November 19, 2008.

2The respondents indicate that a civil court action has been commenced that raises similar issues to the present Application. A copy of the statement of claim was filed with the Tribunal. Section 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn….

[3] The respondents request that the Application be dismissed pursuant to section 34(11). In the alternative, the respondents request that the Application be deferred pending completion of the civil action. Section 45 of the Code permits the Tribunal to defer an application in accordance with the Tribunal’s Rules.

[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 receive submissions with respect to whether, in the circumstances, this Application is barred by virtue of section 34(11) of the Code or ought to be deferred pursuant to section 45 of the Code.

6The Tribunal makes the following Orders:

a. The mediation scheduled for December 19, 2008 is cancelled.

b. 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 or ought to be deferred pending completion of the civil action.

c. Within 20 days of receipt of the applicant’s submissions, the respondents shall deliver to the applicant and file with the Tribunal a response to the applicant’s submissions.

d. Within 10 days of receipt of the respondents’ submissions, the applicant may deliver and file her reply.

7The Tribunal may decide the preliminary issues on the basis of the written submissions. If oral submissions are required, the Tribunal will contact the parties to set a case resolution conference.

8I am not seized of this matter.