Kelly v. CultureLink Settlement Services, 2010 HRTO 634

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Kelly

Applicant

-and-

CultureLink Settlement Services and Canadian Auto Workers Union, Local 40

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: March 23, 2010

Citation: 2010 HRTO 634

Indexed as: Kelly v. CultureLink Settlement Services

1This is an Interim Decision made in respect of an Application filed on March 16, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in employment by the respondents on the basis of disability. The applicant alleges that CultureLink Settlement Services ("the employer") breached the Code in failing to ensure that he received forms in a timely fashion for an application for long-term disability benefits, and in terminating his employment while he was in disability-related leave after he had temporarily vacated a bargaining unit position for a secondment to a non-bargaining-unit. The Application also alleges discrimination on the basis of disability in respect of the applicant's dealings with Canadian Auto Workers Union, Local 40 ("the Union") after he received notice that his employment had been terminated.

2A hearing was initially set for March 22-24, 2010. On agreement of all parties, confirmed by Interim Decision dated March 5, 2010, 2010 HRTO 508, the hearing day on the 22nd was cancelled.

3The Union had filed a Request for Order During Proceedings (the "Union's RFOP") asking for dismissal of the Application on the basis that no prima facie breach of the Code had been established as against the Union. After hearing submissions in a teleconference held on March 1, 2010, I dismissed the Union's request as recorded in the March 5 Interim Decision.

4The employer had filed a Request for Order During Proceedings (the "employer's RFOP") asking that the Application be dismissed, as against the employer, for delay. The March 5 Interim Decision dealt with this RFOP as follows:

Direction in respect of the employer's RFOP

A review of the documents filed in this case reveals that the last act by the employer that allegedly breached the Code appears to have been July 5, 2007, with notice to the applicant on July 9, 2007.

The employer's RFOP alleges that the applicant "was clearly aware of his rights at least one year before his application to the Tribunal...and was at that time represented by counsel". The RFOP goes on to claim significant prejudice, but gives no details of the alleged prejudice.

The applicant's counsel filed a full reply to the employer's RFOP. This material and other material filed by all the parties indicates that the applicant made efforts to pursue his rights, although the "representation by counsel" one year prior to the filing of this Application referred to in the RFOP appears to have been one instance of pro bono assistance. Efforts to pursue one's rights without filing an Application have not, without more, been held by this Tribunal to justify a waiver of the one-year limitation period under section 34(2). However, applicant's counsel has also filed a full description of the applicant's medical condition during the relevant time, outlined how that condition would affect the applicant's ability to undertake legal proceedings and filed medical documentation in support of this argument. In my view, the applicant's submissions may support a finding that the applicant has established "good faith" for the purpose of section 34(2).

The second part of the test for a waiver of the one-year time limit under section 34(2) is "no substantial prejudice" to any person affected by the delay. The employer has not provided support for its assertion that it is substantially prejudiced. Documents on file, and the employer's own admissions indicate that the employer was on notice of a possible action for wrongful dismissal on the part of the applicant, and that it replied to a solicitor's letter in that regard on April 17, 2008 without mention of prejudice.

During the conference call, the parties agreed that the medical evidence of the applicant may be such that the employer's position as to the delay might change. To this end, the applicant will be making efforts to ensure that the anticipated medical evidence is forwarded to the employer as soon as possible before the hearing dates.

...

Directions for hearing

My decision in respect of the Union's RFOP means that, unless the parties settle, the applicant is entitled to a hearing on the merits of the allegations against the Union. I have not made a decision in respect of the employer's RFOP. In the circumstances, if the Application also goes forward as against the employer, the efficiency would seem to indicate that the two should not be the subject of separate hearings.

In the circumstances, the Tribunal will hear argument on the issues raised by the employer on March 23, and if necessary, March 24, 2010. The parties are directed to attend prepared with dates on which they can be available for any subsequent hearing days that might involve the employer, and for the hearing on the merits as against the Union.

5On March 19, 2010, counsel for the employer telephoned the Tribunal, leaving a voicemail in which he requested an adjournment. There followed a series of e-mails between the Registrar's office and counsel for the applicant and for the employer, with copies to the Union, dealing with an assertion by counsel for the respondent employer that "it was clearly understood that we would not be proceeding with the preliminary objection without receiving the medical information", and the objection by counsel for the applicant to the request for adjournment.

6As a courtesy to counsel for the employer, I agreed to hear his request for adjournment by teleconference on the first day scheduled for the hearing.

Decision in regard to adjournment

7The employer's request for adjournment is denied.

8As noted in the Interim Decision, the issue to be dealt with tomorrow is whether the Tribunal should apply s. 34(2) of the Code to waive the one-year limitation period in respect of the allegations as against the employer. There is a two-part test: the Tribunal must be satisfied that the delay was incurred in good faith and that there is no substantial prejudice to any party. There is no dispute that evidence relating to disability affecting the applicant at the relevant time is relevant to the "good faith" part of the test.

9The applicant's counsel served and filed a full reply to the employer's RFOP in November of 2009. This material includes a medical report by one of the applicant's doctors ("Dr. M"). Pursuant to the agreement between counsel noted in the Interim Decision, the applicant's counsel has also served the employer with another medical report from another doctor ("Dr. T."), which has now also been filed with the Tribunal. However, he was unable to arrange for delivery of the notes of Dr. M, who has apparently been ill.

10Counsel for the applicant will be calling Dr M., who will be attending the hearing in person. Applicant's counsel has indicated that he will request that Dr. M bring any notes relevant to her report. Counsel for the applicant has also indicated that, while he had not intended to call Dr. T, Dr. T. will be available for cross-examination on his report, by teleconference, at the hearing.

11Counsel for the employer has asserted that the employer has a right to disclosure of any notes that each doctor may have used to write his or her report, before cross-examining these witnesses, both as a matter of law and as a matter of procedural fairness, and is therefore entitled to an adjournment until these notes are produced.

12Counsel was unable to assist me with legal authority for his position. Counsel has also failed to comply with the Tribunal's adjournment Policy or Rules of Procedure, either in making his last-minute request for adjournment or disclosing the names and expected evidence of the witnesses he intends to call in regard to his RFOP. The Tribunal is committed to the fair, just and expeditious conduct of proceedings for the resolution of Applications, and this includes fairness to all parties, which the Rules are intended to promote.

13In the circumstances, I am not convinced that denial of an adjournment will result in unfairness. It remains open to counsel to make any arguments they choose in respect of evidence at the hearing.

14As noted above, counsel for the employer has failed to disclose the names and expected evidence of the witnesses he intends to call in regard to his RFOP according to the Rules. With the consent of counsel for the applicant, I waive the Rules in order to permit counsel for the employer to produce witness will-say statements according to his Rule 17.2 obligations on the morning of March 24, 2010.

15The parties are directed to attend prepared with dates on which they can be available for any subsequent hearing days that might involve the employer, and for the hearing on the merits as against the Union.

16At the hearing, in order to provide for the fair, just and expeditious resolution of the matter, the Tribunal may make further procedural directions under Rule 1.7 of the Tribunal's Rules of Procedure.