HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Deborah Baker
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services
Respondent
INTERIM DECISION
Adjudicator: Mary Truemner
Indexed as: Baker v. Ontario (Community and Social Services)
1This Interim Decision deals with an Application filed on May 13, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that the respondent discriminated against her on the basis of disability in respect of goods, services and facilities.
2The respondent has indicated in its Response that the Application should be dismissed because another proceeding has in whole or in part appropriately dealt with the substance of the Application. The Response states that the Application “raises issues already dealt with by SBT [Social Benefits Tribunal], or that will be dealt with by SBT in the Applicant’s pending appeals, or that should be dealt with by SBT… In the alternative, the application should be deferred while SBT considers the Applicant’s new appeals.”
3Section 45.1 of the Code states the following:
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.
4Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an Application within its jurisdiction without affording the parties a chance to make oral submissions. The respondent’s Request for Early Dismissal of the Application pursuant to section 45.1 of the Code does not go to the Tribunal’s jurisdiction over the Application. Accordingly, the Tribunal may not grant the respondent’s Request under section 45.1 without affording the parties a chance to make oral submissions.
5Since the Application and the Response indicate that the parties consent to mediation, the Tribunal sent the parties a Notice of Mediation dated December 31, 2009 which indicated that mediation was scheduled for April 19, 2010, but that the respondent’s Requests to Dismiss/Defer would be considered only if the parties are unable to resolve the Application through mediation.
6The Tribunal is in receipt of a letter from counsel for the respondent dated January 6, 2010, in which the respondent asks that the Tribunal adjudicate its Requests to Dismiss/Defer before it participates in mediation.
7Where all of the parties agree to participate in mediation, the Tribunal’s general practice is to schedule the mediation prior to adjudicating issues in the file, particularly where an oral hearing will be required to adjudicate the issues in the file. In this case, the Tribunal may not dispose of the Application pursuant to the respondent’s Request for Early Dismissal without affording the parties an opportunity to make oral submissions. In addition, the outstanding deferral issue is sufficiently complex that an oral hearing is warranted to determine whether deferral is appropriate.
8Mediation at the Tribunal is a voluntary process. In the circumstances, the mediation scheduled for April 19, 2010 will be cancelled and a one-day hearing to determine the respondent’s Request for Early Dismissal of the Application under section 45.1 and its Request to Defer will be scheduled instead, on April 19, 2010, in Ottawa, Ontario. The Tribunal will send a Notice of Hearing to the parties confirming the time and place.
9Any further documents, submissions or caselaw in support of the respondent’s Requests to Dismiss/Defer must be delivered to the applicant and filed with the Tribunal by March 1, 2010. If the applicant wishes to respond with any further documents, submissions or caselaw, she must deliver them to the respondent and file them with the Tribunal by March 15, 2010.
10I am not seized of this matter.
Dated at Toronto, this 12^th^ day of February, 2010.
“Signed by”
Mary Truemner
Vice-chair