McCreary v. 407994 Ontario, 2008 HRTO 330

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Isabel McCreary

Applicant

-and-

407994 Ontario Ltd. o/a Specialty Print, Paul Boyd and Cassandra Buckmaster

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: December 2, 2008

Citation: 2008 HRTO 330

Indexed as: McCreary v. 407994 Ontario

1This is an Application filed September 23, 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 14, 2008, Tribunal scheduled a mediation for December 4, 2008. The mediation date was subsequently changed to December 5, 2008.

2On November 27, 2008 the corporate respondent advised the Tribunal that it could not accept service on behalf of the personal respondent Paul Boyd as he no longer works for the corporate respondent.

3It is the obligation of the applicant to serve all respondents with the Application (Form A). The Tribunal is not satisfied the personal respondent Paul Boyd has been properly served.

4The corporate respondent is directed to provide the applicant and the Tribunal with the last known addresses for Paul Boyd, within 10 days of the date of this decision.

5If the applicant intends to continue the proceedings against Paul Boyd she shall serve the Paul Boyd at the last known address provided by the corporate respondent within 10 days of receiving that information and file a Statement of Delivery (Form C) with the Tribunal once this respondent is served. Alternatively, the applicant is directed to advise the Tribunal and the other respondents in writing within 10 days of receiving Mr. Boyd’s contact information if she elects not to proceed against him.

6On November 27, 2008 the corporate respondent advised the Tribunal that they would not attend the mediation. The Tribunal’s Rules of Procedure for Applications under Section 53(3) of the Human Rights Code (Section 53(3) Rules) and Guide to Section 53(3) Applications, contemplate that the first step in a section 53(3) application is mediation. If mediation is unsuccessful, the mediator will assist the parties to complete a case management checklist (Rule 8) and the application proceeds to a case resolution conference in accordance with Rule 9.1.

7Where a party refuses to attend the mediation, it may impede the efficient processing of the application, in which case the Tribunal may, in its discretion, issue a case management direction (Rule 5.14) directing the parties to attend at the Tribunal to complete the matters identified in the case management checklist. In this case, however, I am satisfied the Application can be processed expeditiously without requiring such attendance.

8In the circumstances of this case, and having regard to the Section 53(3) Rules, the mediation scheduled for December 5, 2008 is cancelled. The Tribunal will proceed to the next step in the process, which is to prepare for a case resolution conference in accordance with Rule 9.

9Accordingly, the parties are directed as follows:

a. Within 10 days following the date of this decision, the corporate respondent and Cassandra Buckmaster shall deliver their Response (Form B) to the applicant and file it with the Tribunal;

b. Within 20 days following receipt of the Application, the respondent Paul Boyd shall file his Response (Form B) with the Tribunal and each party;

c. Within 40 days following the date of this decision, the applicant shall deliver to the respondents, including Mr. Boyd if served with the Application, and file with the Tribunal, a statement of any additional facts the applicant intends to rely upon and a description of the remedies sought. In addition, the applicant shall deliver to the respondents a copy of all arguably relevant documents in the applicant’s possession, except where privilege is claimed;

d. Within 55 days following the date of this decision, the respondents, including Mr. Boyd if served with the Application, shall deliver to each other and to the applicant and file with the Tribunal a statement of any additional facts the respondents will rely upon and the respondents’ positions with respect to the requested remedies. In addition, the respondents must deliver to each other and to the applicant a copy of all arguably relevant documents in the respondents’ possession, except where privilege is claimed.

10The Tribunal will contact the parties to set a date for the case resolution conference. The parties are reminded that the Section 53(3) Rules contemplate that applications under section 53(3) of the Code be dealt with in an expedited manner.