Baccala v. Extendicare, 2012 HRTO 1100

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Caterina Baccala Applicant

-and-

Extendicare (Canada) and Medex Extendicare Respondents

RECONSIDERATION DECISION

Adjudicator: David Muir Date: June 1, 2012 Citation: 2012 HRTO 1100 Indexed as: Baccala v. Extendicare

APPEARANCES

Caterina Baccala, Applicant Hardy W. Baker, Representative

Extendicare (Canada), Respondent(s) No one appearing

Introduction

1This is an Application filed under section 53(5) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.

2In 2012 HRTO 369 (the “Decision”) I dismissed this Application when the applicant failed to respond to Directions to provide the status of another proceeding to which this Application has been deferred for a lengthy period of time.

3On March 12, 2012 the applicant filed a Request for Reconsideration (Request) of the Decision. The Tribunal acknowledged receipt of the Request and requested the submissions of the respondents. Although given an opportunity to respond the respondents provided no submissions.

4The Request is granted.

5Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal's Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal's exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008). Most relevant to this Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

Background

6There is an extensive background to the Decision dismissing the Application which I set out here again for convenience.

7The dispute in this Application flows from the following circumstances. The applicant had been operating a hair dressing business on the respondent’s premises since 1988. The applicant was injured in 2004 and after a period of time was cleared for a return to work. A dispute developed between the parties about the applicant’s rights under the WSIA i.e. was she a “worker” for purposes of the Workplace Safety and Insurance Act (WSIA) or an independent contractor. The WSIB determined that the applicant was a “worker” under the WSIA and that the respondent employer had an obligation to re-employ her. Concurrently with the WSIA dispute the applicant and the respondent entered an extensive period of negotiation concerning her return to work. Based on the documents provided by the respondent the issues in these negotiations appeared to relate to her employment status in part. These discussions broke down, apparently at the time that the respondent believed that their re-employment obligations under the WSIA had expired. The applicant challenged the respondent employer’s withdrawal from the re-employment process. The WSIB initially determined that the respondent had not breached its re-employment obligation.

8The applicant disagreed and appealed to the Appeals Resolution Officer (ARO) who concluded that the respondent was in technical breach of its obligation. The ARO ordered about 6 weeks of loss of earnings benefits for the breach, not the several years to the date of the ARO hearing that the applicant had been seeking. The ARO made findings of fact with respect to the applicant ability to perform work as well as the availability of work with the respondent. The ARO also made a determination of the reason for the respondent’s withdrawal from the re-employment process. The applicant apparently disagrees with some of these conclusions and has taken some steps in launching an appeal of the ARO decision to the WSIAT. Although as can be seen below the WSIAT proceeding has not moved forward more than 4 years after the ARO decision of October 2007.

9This Application was initially deferred at the request of the respondents by Tribunal Decision 2010 HRTO 603 pending the conclusion of a proceeding before the Workplace Safety Insurance Appeals Tribunal (the “WSIAT”). The Tribunal’s decision 2010 HRTO 603 was issued March 19, 2010.

10By letter dated December 1, 2010 and February 2, 2011, respectively, the Tribunal wrote to the parties with Directions requesting an update on the status of the WSIAT proceeding.

11The respondent did not respond. The applicant’s representative wrote to the Tribunal on February 10, 2011, indicating that she had not abandoned the Application under the Code.

12In a Case Assessment Direction (“CAD”) dated June 17, 2011, the applicant was directed to comply with the Tribunal’s prior Directions to advise the Tribunal of the status of the WSIAT proceeding; i.e., if the hearing had begun or if a date has been set for a proceeding etc. On July 5, 2011, the applicant’s representative wrote to the Tribunal advising that the proceeding before the WSIAT was inactive, but that the applicant was taking steps to have the file “activated as soon as possible and getting a final conclusion to the matter.”

13In a CAD dated October 5, 2011, the applicant was directed again to advise the Tribunal and the respondents of the status of the WSIAT proceeding within 20 days of the date of the CAD failing which the Application might be dismissed as abandoned. The applicant’s representative wrote to the Tribunal on October 12, 2011, and advised that the WSIAT file was inactive for four months beginning July 25, 2011, and that the Office of the Worker Advisor was taking over carriage of that matter. The status of the WSIAT process remained unknown.

14In a CAD dated December 16, 2011, the applicant was directed to advise the Tribunal and the respondents of the status of the WSIAT proceeding within 20 days of the date of the CAD failing which the Application may be dismissed as abandoned.

15As of the release of the Decision the applicant had not responded in any fashion to the December 16,2011 CAD. In a further CAD dated January 24, 2012 the applicant was directed to confirm within seven days of the date of the CAD the status of the WSIAT proceeding and her intentions with respect to this Application, failing which the Application would be dismissed as abandoned. Similarly there was no response to this CAD. In light of the applicant’s apparent failure to respond in any way to these last two CAD’s the Application was dismissed as abandoned.

16In her submissions on the Reconsideration the applicant’s representative states that he was involved in a car accident in December 2011 and was away from the office until March 5, 2012 and did not receive the December 16, 2011 and January 24, 2012 CADs until after the Decision was released. This Request was filed within a week of the date the applicant’s representative returned to his office and became aware of the CAD’s and the Decision.

17The applicant advises that the WSIAT proceeding remains in inactive status for another four months from December 16, 2011.

Decision

18I find that this circumstances are analogous to that contemplated by Rule 26.5(b) and that there has been a failure of natural justice in that the applicant’s representative appears to have been incapacitated to some degree and not in a position to respond to my last two CAD’s having not been aware of them until after the Decision had been released. Accordingly I find that my Decision cannot stand and must be set aside. The Tribunal will accordingly continue to process the Application.

Other Matters

19This Application has been deferred since March 2010. It relates to events in 2005 and 2006. Although the ARO decision to which the applicant has objected was made in October 2007 the appeal to the WSIAT remains inactive.

20Although there is some degree of overlap between the WSIA proceeding and the Application I note that in the WSIA proceeding the applicant has not alleged that she was perceived to be a person with a disability and that is the reason for the respondent’s failure to re-employ her – the central claim in this Application. Indeed the finding of the ARO was that the reason the respondent employer failed to re-employ her was, in the end, that it believed their obligation to do so under the WSIA had expired. I also note in this regard that the ARO seems to have concluded that the applicant was capable of returning to work with some modification to her duties and that there was work the applicant could safely perform. The findings of the ARO may be binding on both parties.

21On the other hand a central claim in the two proceedings is somewhat similar – did the respondent have an obligation to re-employ the applicant and did it breach that obligation. More practically the remedial claims in the two proceedings are in large part the same – lost wages for a period of years following an alleged failure to re-employ the applicant. However unlikely an award of wages for a period of years in all of the circumstances given these overlapping issues, there remain reasons to defer this Application.

22However the applicant appears to have taken few if any concrete steps to move the WSIAT proceeding forward. For example in July of last year the applicant’s representative indicated that he was making arrangements to have the Office of the Worker Advisor represent the applicant in the WSIA proceeding. Later in the year there was indication that the applicant was seeking to obtain a legal aid certificate. It is apparent from the latest communications from the applicant that this had not occurred yet and that the WSIAT application remains inactive.

23This file cannot remain in limbo forever. The applicant is directed to take the appropriate steps to move the WSIA proceeding forward, within 60 days of the date of this Reconsideration Decision failing which further Directions will be made to the parties with respect to the continued deferral of this case.

24I am not seized of this case.