Baker v. Kingston General Hospital, 2010 HRTO 122

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sonia Baker

Applicant

-and-

The Board of Governors of Kingston General Hospital, Pam Devine and Bill Hunter

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang
Date: January 19, 2010
Citation: 2010 HRTO 122
Indexed as: Baker v. Kingston General Hospital

1This is an Application filed on October 2, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”).

2By Interim Decision dated December 5, 2008, 2008 HRTO 366, the Tribunal deferred consideration of the Application pending the conclusion of related grievances. The applicant filed a Request for an Order During Proceedings on October 30, 2009, asking that her Application be re-activated. Attached to her Request was a copy of a letter from her union dated February 12, 2009, advising that it was withdrawing her grievances.

3Rule 14.4 of the Tribunal’s Rules of Procedure states:

Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than (sixty) 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.

4As the Request to re-activate the Application was filed more than nine months after the applicant was advised of the withdrawal of her grievances, well beyond the sixty-day time limit set by Rule 14.4, the Tribunal directed the applicant to provide it with submissions on why this Application should proceed, given the delay, 2009 HRTO 2079.

5The Tribunal has received submissions from the applicant and the respondents. Having regard to the submissions and the material before it, the Tribunal will allow the applicant to re-activate the Application. It appears that the Tribunal received a copy of the union’s February 12, 2009 letter, although it was sent without a cover letter and it is not apparent who sent the letter to the Tribunal. The applicant states that in February, 2009, she “requested” that her Application be re-activated, although the Tribunal does not have a record of any verbal or written communication to that effect. In any event, the applicant states that she understood that her Application was not a priority compared with other applications, and waited to be notified as to its status. She states that the HRTO did not notify her that there was any “official paperwork” that she needed to complete, and so she did not realize that she was obliged to file a Request for Order to re-activate her Application. It appears that after contacting the Tribunal on October 15, 2009, to inquire as to the status of her Application, she became aware that she was required to file such a Request.

6The Interim Decision of December 5, 2008 clearly directs the parties to the provisions of Rules 14.3 and 14.4, which outline the process by which an Application may be re-activated, including the filing of a Request for Order within sixty days of the conclusion of the other proceeding. In effect, the applicant states that she made a request, albeit not in the right manner. Although the Tribunal does not have a record of a request, it appears that the applicant informed the Tribunal of the conclusion of the other proceeding. I am satisfied that the applicant intended to re-activate her Application and took steps that she genuinely, albeit mistakenly, assumed were sufficient to do so.

7The respondents state that they are prejudiced in proceeding with the Application in the face of the delay. They state that given the delay, memories of witnesses may be less clear and documents harder to locate. They do not identify any specific witness or document that is no longer available. I find that although there may be some prejudice, it is not so significant as to outweigh the interest of the applicant in proceeding with the Application. At a hearing, if any, the Tribunal may consider what account to take of the effect of the delay on the evidence before it.

8In the circumstances, the Tribunal waives the strict application of the sixty-day time limit and accepts the applicant’s request to re-activate the Application.

9The applicant’s allegations of discrimination and reprisal under the Code have been set out in handwriting, in printed form, and in various communications, including the original Application. Before proceeding with the Application and directing the respondents to file Responses, the Tribunal finds it appropriate to direct the applicant to re-state the allegations clearly.

10The applicant is therefore directed to describe, in printed form and in no more than two pages, all the actions of the respondents that she states violate the Code. She is directed to state what the respondents did that amounts to discrimination under the Code, or a reprisal under the Code.

11In her Application, the applicant alleges that the respondents discriminated against her on the ground of a “record of offences”. It is not apparent that the ground of “record of offences” applies here. If the applicant wishes to maintain this allegation, she must state how the respondents’ actions were related to discrimination on the basis of a conviction for an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada), R.S., 1985, c. C-47, and has not been revoked, or an offence in respect of any provincial enactment (s.10(e)). See for example Gravino v. P.R. Maintenance, 2009 HRTO 516; de Pelham v. Mytrak Health Systems, 2009 HRTO 172).

12The Application also appears to raise an issue of discrimination on the ground of “disability or a perceived disability” as suggested on Form 1-A. If the applicant wishes to maintain this allegation, she must explain how the respondents discriminated against her on the basis of a disability or perceived disability.

13The applicant has also marked “reprisal or threat of reprisal” on her Application. If the applicant is alleging that the respondents engaged in a reprisal under the Code, she must identify how the actions of the respondents were related to any of the following: claiming or enforcing a right under the Code; instituting or participating in proceedings under the Code; or, refusing to infringe the right of another person under the Code [s. 8]. See for example Mirea v. Canadian National Exhibition, 2009 HRTO 32; Chan v. Tai Pan Vacations, 2009 HRTO 273.

14The applicant may wish to review the provisions of the Human Rights Code noted above as well as the Tribunal’s Rules of Procedure and Guides to its processes, all available on the Tribunal’s website at www.hrto.ca, before responding to this Interim Decision. Tribunal decisions can be accessed free of charge at www.canlii.org.

15The applicant’s written submissions must be filed with the Tribunal and provided to the other parties by February 11, 2010. The applicant is reminded of the obligation under the Tribunal’s Rules to copy all parties with all written communications to the Tribunal, including email communications. Along with this Interim Decision, the Tribunal is forwarding to the respondents email communications from the applicant dated November 22, 2008, November 24, 2008, December 23, 2008 and October 15, 2009. The Tribunal also forwards a copy of the union’s February 12, 2009 letter, received by the Tribunal on February 23, 2009.

16The Tribunal will consider the applicant’s submissions before deciding whether to dismiss or proceed with all or part of the Application. If the applicant does not file written submissions by the required time, the Tribunal may make its decision based on the material before it, or may consider the failure to respond as an abandonment of the Application and dismiss the Application for that reason.

17I am not seized of this matter.