HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jila Abediny

Applicant

-and-

Longo Brothers Fruit Market and Vince Tortorici

Respondents

INTERIM DECISION

Adjudicator: Mary Anne McKellar

Date: February 5, 2010

Citation: 2010 HRTO 266

Indexed as: Abediny v. Longo Brothers Fruit Market

1This is an Application under section 53(5) of the Human Rights Code (the “Code”). It was filed with the Tribunal on June 10, 2009 and perfected on August 7, 2009. The underlying complaint to the Commission is dated March 29, 2006.

2No mediation was convened in this matter. Rather, it was scheduled for a hearing before me on February 4, 2010. The parties were advised of the hearing by Registrar’s letter dated November 3, 2009, which also stipulated the deadlines by which each party was to make documentary disclosure to the other and provide witness statements. The applicant did not provide any witness statements, but did write to the Tribunal on November 30, 2009 replying to the respondents’ pleadings and enclosing two documents.

3At the outset of the hearing, a number of case management issues became apparent, including: (1) the scope of the Application, and in particular, whether the applicant was seeking to or could be permitted to rely on events pre-dating those set out in her original complaint; (2) whether the applicant had complied with the obligation to disclose all arguably relevant documents; (3) the respondents seeking to have the matter disposed of without a hearing into the merits on the basis of section 45.1 of the Code, a matter to which they had adverted in correspondence but without specifically referring to section 45.1 or Rule 21 of the Rules of Procedure applicable to section 53(5) applications; and (4) the respondents’ alternative or related position that the matter should be dismissed because the remedies set out in the Application are not available from the Tribunal as they appeared to relate to the continuation and quantum of WSIB benefits.

4In the circumstances, I advised the parties that we would initially recess so that counsel for the respondents might review the several binders of documents that the applicant had brought to the hearing. Most, if not all, of these documents related to her WSIB claim, but part of her allegations in the complaint refer to the respondents’ role in the determination of that claim. I also invited the parties to consider whether they would like to attempt to mediate their dispute, and provided a brief description of the mediation process.

5After the recess had expired, I was advised by counsel for the respondents that he had learned the applicant had additional documents pertaining to the WSIB matters at home, including, possibly, a document responsive to one that had been sent to the Tribunal under cover of the applicant’s November 30, 2009 reply to the respondents’ pleadings, and on which the applicant intended to rely. It appeared that the hearing could not proceed, and the parties agreed that I should spend a bit of time speaking privately to each of them about mediation. I had previously advised them that if I facilitated any settlement discussions between them, those discussions would occur on a confidential and “without prejudice” basis and I would not adjudicate the matter should it not resolve by way of settlement.

6After I had met with each of the parties, it became clear that: the matter was not about to settle that day; it was not ready for hearing; and the applicant was unsure of how to proceed or whether she wished to proceed. I therefore adjourned the matter, and advised that the Tribunal would make a request in writing that the applicant advise the Tribunal in writing within a short period of time of her intentions with respect to this application.

7The applicant is therefore directed to write to the Registrar-Transition and to counsel for the respondents by February 19, 2010 advising of the following:

(a) whether she wishes to continue with her Application; and

(b) if she does wish to continue, whether she consents to have the matter mediated; or

(c) requests that it proceed directly to a hearing in which case, it will be assigned to a new panel.

8If the applicant does not write to the Tribunal by February 19, 2010, indicating that she intends to proceed with her Application, it will be deemed to have been abandoned.

9In the event the applicant elects to proceed with her complaint directly to a hearing, she is advised that “all arguably relevant documents” must be disclosed to the respondents. The applicant cannot simply state that the respondents already have them all in their possession – the respondents must be able to verify if this is an accurate statement. Since it is quite likely, however, that the organizational respondent has already been copied on some of the WSIB-related documents, it seems appropriate that disclosure in this case take place in two stages. Initially, the applicant should prepare a list of the documents in her possession (identified by date and author) and provide that list to counsel for the respondents so that he may ascertain what ones his client does not already have and request copies of them. Such list should be provided by the applicant to counsel 45 days prior to any new date set for the hearing, and counsel should make his request for any copies no later than 25 days prior to any new hearing date. At this point I understand that counsel is in particular seeking a copy of any response from the WSIB to the letter dated January 31, 2007 (a copy of which has already been filed with the Tribunal) written on the applicant’s behalf by the Office of the Worker Advisor to the WSIB, and that the applicant has undertaken to provide it should this matter proceed.

10Should the applicant elect to proceed directly to a hearing, counsel for the respondents is requested to confirm with the Tribunal if he intends to seek the dismissal of the Application on a preliminary basis, and if so to clarify in writing at least ten days in advance of the hearing what provisions of the Code or the Tribunal’s Rules of Procedure he relies on, as well as to provide the citations for any legal authorities on which he relies.

11I am not seized.

Dated at Toronto, this 5th day of February, 2010.