HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wenziao Chen

Applicant

-and-

Harris Rebar, A Division of Harris Steel Limited, Peter Spatola and Andrew Oliver

Respondents

INTERIM DECISON

Adjudicator: Kaye Joachim

Date: December 11, 2008

Citation: 2008 HRTO 365

Indexed as: Chen v. Harris Rebar

1This is an Application filed November 7, 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 for February 17, 2009. The respondents filed a Response on December 8, 2008.

2The respondents indicate that the applicant raised substantially the same issues under the Employment Standards Act and that the Ontario Labour Relations Board has issued a decision on this matter. The respondents assert that therefore the issues raised by the Applicant are barred by the application of the legal doctrine of res judicata. A copy of the decision of the Ontario Labour Relations Board was filed with the Tribunal.

3Section 45.1 of the Code provides, in part:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

[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 45.1 of the Code or by the legal doctrine of res judicata.

6The Tribunal makes the following Orders:

a. The mediation scheduled for February 17, 2009 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 45.1 of the Code or by the legal doctrine of res judicata.

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 parties are directed to advise the Tribunal, within 10 days of the date of this decision, of their availability for a 3 hour Case Resolution Conference to hear oral submissions on the above issues during the weeks of either February 22 or 29, 2009 at either 9.30 to 12.30 or 1.30 to 4.30. If the parties do not indicate their availability within 10 days, the Tribunal will schedule the case resolution conference without further consultation with the parties.

8I am not seized of this matter.