Sadeghzadeh v. Gesco Limited Partnership, 2012 HRTO 1109

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sam Sadeghzadeh Applicant

-and-

Gesco Limited Partnership LLP Respondent

DECISION

Adjudicator: Brian Eyolfson Date: June 5, 2012 Citation: 2012 HRTO 1109 Indexed as: Sadeghzadeh v. Gesco Limited Partnership

APPEARANCES

Sam Sadeghzadeh, Applicant ) Self-represented Gesco Limited Partnership LLP ) Jonathan Cocker, Counsel

INTRODUCTION

1This Application was filed on March 4, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination on the basis of ancestry, place of origin and disability in employment and reprisal.

2In an Interim Decision dated January 27, 2010, 2010 HRTO 193, the Tribunal determined that the Application would be deferred pending the completion of a grievance arbitration. The Tribunal directed the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which outline how the Application could be brought back on after the conclusion of the arbitration proceeding.

3On February 4, 2011, the Tribunal wrote to the applicant, requiring the applicant to advise the Tribunal whether the grievance was still ongoing and, if possible, when it was expected to be completed, within 30 days. The Tribunal’s letter indicated that if the applicant failed to respond as directed, the Tribunal may dismiss the Application as abandoned.

4On February 23, 2011, the Tribunal received materials from the applicant that consisted of copies of correspondence concerning his grievance arbitration. The applicant confirmed in a Statement of Delivery that he also delivered the materials to the respondent. Included in the materials was a copy of an Arbitrator’s Decision dated May 4, 2010, dismissing the applicant’s grievance.

REQUEST FOR ORDER DURING PROCEEDINGS

5On June 2, 2010, the applicant filed a Request for an Order During Proceedings (“Request”) to re-activate the deferred Application, submitting that the arbitration was finished and that the Application no longer needed to be deferred.

6The respondent filed a Response, dated June 15, 2011, opposing the applicant’s Request that the Application be re-activated. In the Response, the respondent submits that, in its Interim Decision, the Tribunal specifically instructed the applicant to ensure that any attempt to re-activate the Application be done in accordance with Rule 14.4 of the Tribunal’s Rules. The respondent submits that Rule 14.4 imposes a strict 60-day re-activation deadline on matters deferred by the Tribunal, and that the applicant has offered no explanation whatsoever for the delay in bringing his Request. The respondent submits that in the absence of a good and compelling reason for the extraordinary delay, the Tribunal must deny the Request and dismiss the Application.

HEARING

7In a Case Assessment Direction dated August 12, 2011, the Tribunal determined that it was appropriate to schedule a telephone conference call to address the issues raised in the applicant’s Request and the respondent’s Response to the Request, wherein the respondent submitted that the Application should be dismissed.

8At the hearing, the applicant explained that he missed Rule 14 of the Tribunal’s Rules, but that he did not do it deliberately. He explained that he was waiting for instructions from “Human Rights”, and that, unfortunately, he missed the paragraph in the Tribunal’s Interim Decision referring to Rule 14.

9The respondent reiterated that the applicant was provided with express direction in the Tribunal’s Interim Decision deferring the Application to comply with Rules 14.3 and 14.4 of the Tribunal’s Rules at the conclusion of the arbitration proceeding, and there was no suggestion that he did not receive a copy of the Arbitrator’s Decision. The respondent also submitted that a misunderstanding of the Tribunals’ Rules is not a good reason for the applicant to have failed to comply with the time requirement in Rule 14.4 of the Tribunal’s Rules.

DECISION

10Rule 14.4 of the Tribunal’s Rules requires that a request to proceed with a deferred Application be filed no later than 60 days after the conclusion of the other proceeding. While the Tribunal has the power to waive the strict application of its Rules (Rule 5.2), there must be “a good reason” to do so: See Baker v. Kingston Hospital, 2009 HRTO 2079, at para. 6. Also, in addressing a late re-activation request in Marc-Ali v. Graham, 2012 HRTO 502, the Tribunal stated as follows, at para 20:

The principles to apply in extending time limits under the Rules should be similar to the principles established under section 34 of the Code: has the delay in meeting the time limits in the Rules been incurred in good faith (in Baker, this requirement was worded slightly differently, but I see no significant difference between “good faith” and “a good reason”); and will any substantial prejudice to the respondents result from extending the time limit. The length of the delay is a factor in assessing the potential prejudice to the respondents. In addition, the Tribunal should be mindful of Rule 1.1 which sets out the need to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of an application.

11In the present case, the applicant provided a copy of correspondence dated May 6, 2010, and sent to him by courier, advising him that an Arbitrator made a decision to dismiss his grievance, and attaching the Arbitrator’s Decision dated May 4, 2010. The applicant does not dispute that he received the Arbitrator’s Decision at the time. It also appears that the applicant provided these materials to the Tribunal and the respondent, on February 22, 2011, in response to the Tribunal’s inquiry regarding the status of his grievance. The applicant, however, did not advise the respondent and the Tribunal that he wished to re-activate his Application until he delivered his Request which was received by the Tribunal on June 2, 2011, approximately 13 months after the applicant was advised that his grievance was dismissed.

12While the applicant asserts, in effect, that he was not aware of the requirements of Rule 14.4 of the Tribunal’s Rules, he was advised at the time he filed his Application, in a letter from the Registrar, to review the Tribunal’s Rules, and he was subsequently referred to the Tribunal’s Rules on more than once occasion. In particular, the Tribunal’s Interim Decision deferring the Application pending completion of the arbitration proceeding directed the applicant’s attention to Rules 14.3 and 14.4 and indicated that these Rules outline how the Application could be brought back on after the conclusion of the arbitration. Even though the applicant was again referred to Rules 14.3 and 14.4 in the Tribunal’s letter to him dated February 4, 2011, he did not file his Request to re-activate his Application until June 2, 2011, approximately 4 months later. In my view, the applicant has not provided a good reason for why he waited as long as he did to deliver and file his Request to re-activate his Application.

13The respondent also submits that the delay has affected its ability to meaningfully participate in this matter and defend itself. The respondent had no indication that the applicant wished to re-activate his Application until approximately 11 months after the 60-day time limit in the Tribunal’s Rules had passed. In my view, this is a significant delay that could result in some prejudice to the respondent from the inevitable impact of the passage of time on witnesses’ memories.

14Considering all of the circumstances, including the length of the delay, the absence of a good reason provided by the applicant for the delay, and the possibility of some prejudice to the respondent as a result of the delay, it is my view that it would not be appropriate to waive or vary the application of the timeline set out in Rule 14.4 of the Tribunal’s Rules.

15The Request to re-activate the Application is dismissed, and the Application is therefore dismissed.