Heming v. M. Vernescu Drugs, 2011 HRTO 546

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Suzanne Heming

Applicant

-and-

M. Vernescu Drugs Limited o/a "Shoppers Drug Mart" and James Jacobs

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: March 17, 2011

Citation: 2011 HRTO 546

Indexed as: Heming v. M. Vernescu Drugs

1This Application, which was filed on June 7, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the "Code"), alleges discrimination in employment on the basis of disability. It further alleges reprisal or the threat of reprisal. This Interim Decision addresses a request by the respondents that the Application be dismissed for delay or deferred pending the outcome of another proceeding.

2The applicant was employed as a merchandiser by M. Vernescu Drugs Limited o/a "Shoppers Drug Mart". The applicant was dismissed from her job on May 21, 2009 but received a further two weeks in wages until June 6, 2009.

3The respondent filed a Response on August 24, 2010 denying that it had discriminated against the applicant. The Response includes a request that the Application be dismissed for delay or deferred pending the outcome of another proceeding. The respondents submit that the Application was filed over one year after the last alleged incident of discrimination and, as such, was beyond the one-year time frame for the filing of an application set out in section 34(1) of the Code. The respondents further submit that the applicant has not provided a reasonable explanation that the delay was incurred in good faith so as to permit the filing of a late application pursuant to section 34(2).

4The respondents also submit that the applicant has commenced an Employment Standards claim which deals with the same subject matter and incidents as raised in the Application and that, as a consequence, the Application should be deferred pending the outcome of this other proceeding. The respondents did not provide a copy of this claim, any further details about this claim or further submissions on why the Application should be deferred given this other claim.

5On November 25, 2010, the Tribunal wrote to the applicant enclosing a copy of the respondents' Response. The Tribunal directed the applicant to include with her Reply to the Response submissions on the requests to dismiss and defer.

6The applicant filed her Reply and submissions on March 11, 2011. The applicant states that her Application, which was filed on Monday, June 7, 2010, was filed in a timely fashion given that she continued to be paid by the corporate respondent until June 6, 2009 and that the Tribunal's rules state that when the deadline for filing a document falls on a statutory holiday or a Sunday, as is in this case, the document can be considered filed on time if received and processed on the next business day. The applicant does not respond to the request to defer her Application.

DECISION

7The Tribunal requires further submissions from both parties in order to address the respondents' requests.

8The applicant is relying on an argument that she did file her Application within a year of the last incident of discrimination. The respondents submit that the last incident of alleged discrimination is on or about May 21, 2009 when the applicant's employment was, in fact, terminated. If this is the case, the applicant's Application has been filed beyond the one-year time limitation set out in section 34(1).

9Given these circumstances the Tribunal requires the applicant to deliver to the respondents and file with the Tribunal, no later than 21 days from the date of this decision, written submissions on why she was unable to file her Application prior to May 21, 2010 and why the possible delay in filing her Application was incurred in good faith. This does not mean that the Tribunal has made a decision in relation to the applicant's argument that she filed her Application within the required one-year time frame and the applicant can make further submissions on this issue, if she wishes.

10The nature and current status of the applicant's Employment Standards claim is not clear to the Tribunal, given the lack of information provided by the respondents (and the applicant). Ultimately, any ruling that the Tribunal might make on whether to defer the application must be informed by an understanding of this claim, its specific subject matter, its current status and the degree to which it addresses the issues raised by the applicant in her Application.

11The respondents are directed to deliver to the applicant and file with the Tribunal, no later than 21 days from the date of this decision, a copy of the Employment Standards claim and further submissions to support the Requests to defer and dismiss the Application.

12The parties may reply to each others submissions within seven days of receiving them.

13I am not seized of this matter.