Vonella v. Blake Jarrett and Company, 2010 HRTO 2158

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elena Vonella

Applicant

-and-

Blake Jarrett and Company, Devin Melanson,

Blake Jarrett and Kelly Green

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: October 26, 2010

Citation: 2010 HRTO 2158

Indexed as: Vonella v. Blake Jarrett and Company

WRITTEN SUBMISSIONS BY

Elena Vonella, Applicant ) Katrina Marciniak, Counsel

Blake Jarrett and Company, Devin Melanson, ) Stephen Shore, Counsel

Blake Jarrett and Kelly Green, Respondents )

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which she alleges discrimination in the context of employment on the basis of sex. In essence, she alleges that her pregnancy and parental leaves were factors in the termination of her employment.

BACKGROUND

2In an earlier Interim Decision, 2010 HRTO 1206, the Tribunal deferred consideration of the Application because of an ongoing related matter under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”).

3The ESA matter was decided on June 16, 2010. An ESA officer awarded the applicant $173.08 in severance pay. However, the officer denied the applicant’s claim for equal pay for equal work and rejected her allegations of reprisal based on pregnancy and parental leave pursuant to the ESA.

4On September 10, 2010, the applicant filed a Request to reactivate (“Request”) the Application. As the Request was filed outside the 60-day timeframe provided for in Rule 19, the applicant also seeks an extension of time for filing.

5On September 29, 2010, the respondents filed a Response to the reactivation Request objecting to the reactivation of the Application on the grounds that the Request was untimely. I note that the respondents’ Response was filed two days outside the time limit prescribed by the Tribunal’s Rules.

6On September 30, 2010, the respondents filed a Request for an Order During Proceedings seeking the dismissal of the Application on the basis of section 45.1 of the Code. The respondents have filed detailed submissions arguing that the ESA proceeding appropriately dealt with the substance of the Application.

7On October 15, 2010, the applicant filed detailed written submissions objecting to the respondents’ Request to Dismiss.

REQUEST TO REACTIVATE

8The Tribunal’s Rules set out the manner in which a matter which has been deferred may be brought back on for hearing before the Tribunal. Rule 14.4 states that a request to reactivate a deferred application must be made no later than 60 days after the conclusion of the other proceeding.

9The applicant’s Request was filed more than 60 days after the ESA matter’s conclusion. Counsel for the applicant states that the applicant was unrepresented and the additional time was necessary in order for her to obtain and consult legal counsel.

10The respondents object to the reactivation on the basis of delay. They argue that the 60-day time period runs as of the date of the decision, not upon the expiry of the time for exercising a right to appeal. They argue that the applicant is familiar with the legal process and had ample time to consult counsel. At a minimum, she ought to have contacted the Tribunal and the parties within the limitation period to preserve her right.

11In terms of prejudice, the respondents state that they are entitled to closure of legal proceedings. They do not, however, allege any specific prejudice to their ability to respond to the allegations contained in the Application, should it proceed.

12Pursuant to Rule 1.7, the Tribunal has the discretion to lengthen time limits provided for the in the Rules.

13In the circumstances, I am prepared to grant an extension of time for the filing of the Request. Although I appreciate the need for closure, I am mindful that the delay in filing the Application was short and that the respondents have not alleged any specific prejudice to their ability to respond to the Application.

REQUEST TO DISMISS

14Both parties have filed detailed written submissions regarding the respondents’ Request to Dismiss.

15Section 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.

16The respondents have indicated that they are prepared for the issue to be determined on the basis of written submissions.

17Accordingly, within ten days of the date of this Interim Decision, the applicant must advise the Registrar and the respondents whether she wishes to make oral submissions on the issue of dismissal or whether it should be determined on the basis of the parties’ written submissions.

18If the applicant indicates that she wishes to make oral submissions, the Registrar will schedule a telephone conference and both parties will have an opportunity to make submissions.

19If the applicant indicates that she does not wish to make oral submissions or if she does not communicate with the Tribunal within ten days of the date of this Interim Decision, the Tribunal will determine the issue based on the materials already filed.

20I am not seized of this matter.