Bogatin v. CML Healthcare, 2010 HRTO 1429

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yolanda Bogatin by her litigation guardian the Office of the Public Guardian and Trustee

Applicant

-and-

CML Healthcare Inc.

Respondent

INTERIM DECISION

Adjudicator: Eric Whist Date: June 29, 2010 Citation: 2010 HRTO 1429 Indexed as: Bogatin v. CML Healthcare

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 21, 2009, alleging, through her litigation guardian, discrimination in employment on the grounds of disability. The Application identifies that the last incident of discrimination occurred on November 22, 2007, over 12 months prior to the filing of the Application. This raises an issue as to whether the Application is barred by section 34 of the Code due to a delay in filing.

2Rule 13.2 of the Tribunal’s Rules of Procedure states that where it appears to the Tribunal that an Application is outside its jurisdiction, it shall, prior to sending the Application to the respondent, issue a Notice of Intention to Dismiss the Application. The Notice is only sent to the applicant, and requires the applicant to file written submissions. On February 19, 2010, the Tribunal issued a Notice of an Intent to Dismiss to the applicant asking for submissions to explain why the Application was filed more than one year after the last alleged incident of discrimination described in the Application. On March 22, 2010, the applicant’s litigation guardian, the Office of the Public Guardian and Trustee (the “PGT”), filed submissions on behalf of the applicant.

3On April 19, 2010, the Tribunal issued an Interim Decision, 2010 HRTO 854. The Tribunal determined, based on the information provided in the narrative and the submissions made by the PGT, that it was not plain and obvious that there was a delay in filing and, if there was a delay, that it was not incurred in good faith or that the respondent would suffer substantial prejudice if the Application was to proceed. Consequently, the Tribunal decided that it would continue to process the Application and that the Application, the submissions made by the PGT and the Tribunal’s Interim Decision would be served on the respondent. The Tribunal noted that the Interim Decision was not a final decision with respect to whether the Application was barred by section 34 of the Code and that if the respondent did not accept that the Application should proceed the applicant might be required to provide further evidence and submissions in support of her position regarding the issue of delay.

4On May 4, 2010, the respondent filed a Request for an Order During Proceedings stating that it did not accept that the Application has been filed in a timely manner and questioned whether the PGT had disclosed with its submissions all the information and documentation available to it that would be relevant to the Tribunal’s decision as to whether the Application was barred by section 34 of the Code. The respondent requested that the Tribunal order PGT to provide particulars and documentation as to its knowledge of the facts relating to the timeliness of the Application including all relevant notes, records and documents in PGT’s possession (as well as the dates of receipt of any documentation relevant to the timing of the Application). The respondent also requested that the Tribunal extend the deadline for the respondent to provide written submissions on the issue of timeliness until after PGT’s compliance with the order to provide particulars and documentation, and that the Application be deferred, or the respondent not be required to file a Response on the merits of the Application, until the Tribunal determined the preliminary issue of whether the Application is barred from proceeding by section 34 of the Code.

5The PGT opposes the respondent’s requests arguing, in part, that a request for the production of documents is premature and not necessary as the Tribunal’s Rules of Procedure provide for disclosure and that the applicant would comply with the disclosure requests as set out under Rules 16 and 17. The PGT also opposes the respondent being given an extension of time to provide written submissions on the preliminary issue of the timeliness of the Application.

6In my view, the most fair, just and expeditious manner in which to proceed is for the Tribunal to schedule a half-day hearing in order to hear submissions and, if necessary, evidence from the parties in relation to the preliminary issue of whether the Application is barred from proceeding by section 34 of the Code. The PGT should be prepared to explain when it learned of the last identified incident of discrimination and the reason for filing the Application in December 2009, 25 months after the last identified incident of discrimination.

7In their submissions the parties may wish to address the significance, if any, of when the litigation guardian learned of the last incident of discrimination and how sections 34(1) and 34(2) apply in this case in light of the involvement of the litigation guardian. The parties may wish to address what impact, if any, the applicant’s health issues have had on the question of delay. In their submissions in relation to section 34(2), the parties may wish to address both whether the delay was incurred in good faith as well as whether there might be substantial prejudice to the respondent.

8If either party wishes to rely on case law or other supporting material during the hearing, they are directed to deliver this material and, if calling witnesses, summaries of anticipated witness evidence, to each other, and to the Tribunal, by no later than three weeks before the date scheduled for the hearing.

9The PGT is directed to deliver to the respondent and file with the Tribunal the documents in its possession relevant to the timing of when it became aware of the alleged discrimination contained in the Application no later than three weeks before the date scheduled for the hearing.

10The Tribunal dismisses the request to defer the Application. However, the respondent is not required to file a Response until such time as the Tribunal has decided the preliminary issue of whether section 34 bars the Application from proceeding.

11I am not seized of this matter.