HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Glendon Mullings
Applicant
-and-
Global Alliance Worldwide Chauffeured Services Ltd.,
Joe Ironi and Angelo Sarris
Respondents
DECISION
Adjudicator: Brian Cook
Indexed as: Mullings v. Global Alliance Worldwide Chauffeured Services Ltd.
APPEARANCES
Glendon Mullings, Applicant
Self-represented
Global Alliance Worldwide Chauffeured Services Ltd., Joe Ironi and Angelo Sarris, Respondents
Robert Stewart, Representative
Introduction
1This Application was filed on October 22, 2008, and alleged discrimination in employment on the basis of race and colour. According to the Application, on August 11, 2008, the applicant had an argument with the two personal respondents about damage to the car the applicant had been driving. The applicant’s employment was terminated at the end of this discussion. The applicant’s employment was scheduled to end within six weeks of the termination of his employment as he had secured alternate employment.
2The Tribunal scheduled a hearing for April 22, 2010. The applicant appeared and was represented by Glen Morrison, a paralegal. The respondents did not appear but their representative, Robert Stewart, did appear. The hearing was adjourned in circumstances described in an earlier Interim Decision, 2010 HRTO 895, and pending the conclusion of a related proceeding under the Employment Standards Act, 2000, S.O. 2000, c.41 (“the ESA”), which was then before the Ontario Labour Relations Board.
3The Interim Decision indicated as follows:
The Tribunal’s Rule 14 sets out the procedure if a party wishes to proceed with an Application that has been deferred pending the conclusion of another proceeding.
4On December 13, 2010, the Tribunal received correspondence from Mr. Morrison indicating that the file had been transferred to Ayoob Khan, a paralegal.
5On May 5, 2011, the Tribunal Registrar wrote to Mr. Khan to determine if the ESA matter was still ongoing. The letter advised that the applicant was required to advise the Tribunal within 30 days and that if the applicant failed to do so, the Application could be dismissed as abandoned. No response to this letter was received but the Application was not dismissed.
6On November 16, 2011, the Tribunal received a letter from Mr. Khan, which asked for an “update on the status” of the Application.
7On December 7, 2011, the Tribunal received a Request for Order During Proceedings, filed by Mr. Khan on the applicant’s behalf. The Request indicated that the ESA matter “was concluded in July 2010 by way of a settlement.” It asked that the Application be reactivated.
8The Tribunal issued a Case Assessment Direction, dated January 11, 2012 directing the applicant to provide a copy of the settlement documents referred to in the Request for Order During Proceedings and to explain why the request for reactivation was not made within 60 days of the conclusion of the ESA proceeding, as required by Rule 14 of the Tribunal’s Rules of Procedure.
9On January 23, 2012, Mr. Khan forwarded submissions on the applicant’s behalf. These indicated that the applicant had made a complaint about Mr. Morrison, his former representative, to the Law Society of Upper Canada “in relation to the non-action and delay”, and had also made a complaint about the respondent’s representative, Mr. Stewart. The submission indicated that the applicant asked for a further opportunity to explain the delay in making the reactivation request.
10On behalf of the respondents, Mr. Stewart filed a Response to the Request for Order During Proceedings, opposing the reactivation request.
11On February 6, 2012, Mr. Khan sent a letter to the Tribunal advising that he was no longer representing the applicant.
12On February 24, 2012, the Tribunal issued a Case Assessment Direction directing a telephone conference call hearing to hear submissions on the applicant’s request for reactivation.
13The telephone conference call hearing was held on May 15, 2012. The applicant participated and was self-represented. The respondents were represented by Mr. Stewart.
14On May 14, 2012, the applicant sent an email to the Tribunal asking that the conference call hearing be adjourned. The adjournment request was denied.
The telephone conference call hearing
15At the outset of the telephone conference call hearing, the applicant advised that he has filed complaints with the Law Society of Upper Canada concerning Mr. Stewart and Mr. Morrison. Mr. Morrison passed away after the applicant made this complaint and the applicant said that the Law Society of Upper Canada informed him that as a result, nothing could be done. The applicant indicated that the complaint against Mr. Stewart is ongoing. The applicant indicated that the complaint against Mr. Stewart has to do with the applicant’s allegation that Mr. Stewart has a conflict of interest. The basis for this allegation was not clear.
16The applicant explained that after the ESA matter was settled in July 2010, he understood from Mr. Morrison that Mr. Morrison was involved in ongoing discussions with Mr. Stewart about the possibility of settling the human rights issues. Mr. Morrison told him he was confident there would be a settlement. The applicant indicated that he trusted Mr. Morrison and assumed that he had preserved the applicant’s rights in respect of the Application. He later found out that Mr. Morrison had sold his paralegal practice to Mr. Khan, but Mr. Morrison did not tell him that this had happened.
17The applicant testified that he found out in approximately November 2010 that Mr. Morrison had failed to file a request to reactivate the Application. The applicant testified that at some time after this, he spoke to Mr. Khan who confirmed that the Application had not been reactivated. The applicant indicated that he himself sent a letter to the Tribunal asking that the Application be reactivated but he conceded that there does not appear to be any record of this and he himself does not have a copy of the letter and he is not sure when such a letter might have been sent.
18The respondents submit that the Tribunal should not permit the applicant to reactivate the Application. On behalf of the respondents, Mr. Stewart submitted that the applicant had been professionally represented throughout. Mr. Stewart submitted that the respondents would be significantly prejudiced if the Application were to be reactivated after such a long delay. He advised that there are important witnesses who are no longer with the corporate respondent or who now refuse to be involved in this Application although they would have agreed to be involved earlier on.
Analysis
19The Application was deferred by the Tribunal pending the conclusion of the ESA matter.
20Rule 14.4 of the Tribunal’s Rules of Procedure provides as follows:
14.4 Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.
21The ESA matter was concluded on July 16, 2010. To comply with Rule 14.4, the applicant should have filed a Request to reactivate the Application by approximately September 16, 2010, being 60 days after the conclusion of the ESA matter. Instead the Request to reactivate the Application was not filed until December 2011.
22The applicant says that the delay was due to the fact that he trusted his representatives. He was told that the human rights issues would be settled and also not to worry about the status of the Application.
23The documents provided by the parties in advance of the conference call hearing include letters dated August 13, 2010 and November 23, 2010, from Mr. Morrison to Mr. Stewart. The letters indicate that there were in fact settlement discussions between the parties. On January 14, 2011, a few months after the second of these letters, Mr. Morrison sent a letter to Mr. Stewart advising that he had transferred the applicant’s file to Mr. Khan.
24The next documented event was the Tribunal’s letter to Mr. Khan of May 5, 2011, asking the applicant to advise about the progress of the ESA matter. No response was received to that letter, even though the letter advised that failure to respond could result in dismissal of the Application.
25As noted earlier, Mr. Khan did send a letter to the Tribunal on November 16, 2011. This letter was the first communication on behalf of the applicant since the Tribunal’s letter of May 5, 2011 asking about the progress of the ESA matter. The letter from Mr. Khan reads as follows:
We represent the Applicant in the above noted matter.
We note that we have not received any updates in this matter since the matter had been [deferred] by the Tribunal by interim decision dated April 29, 2010.
Kindly [advise] us if there is any updates in this regard for us to keep the applicant informed of the status of this matter.
26In the light of the Tribunal’s letter of May 5, 2011, this letter seems somewhat disingenuous, particularly as it appears that Mr. Khan was aware of the Tribunal’s Interim Decision which deferred the Application pending the conclusion of the ESA matter, and Mr. Khan knew that the ESA matter had concluded in July 2010 and that Mr. Morrison had not taken any action to reactivate the Application.
27When Mr. Khan finally filed the December 6, 2012 Request for Order During Proceedings asking that the Application be reactivated, he simply ignored the fact that the ESA matter was settled in July 2010, which was then almost a year and a half before the Request was filed and made no comment about the delay.
Conclusions
28The Tribunal discussed the considerations in determining a request to extend the time for filing a request to reactivate an Application after it has been deferred in Marc-Ali v. Graham, 2012 HRTO 502, at paragraphs 19 – 22:
The Rules require that a reactivation request be filed within 60 days of the conclusion of the other proceeding. The Tribunal has the discretion to vary time limits set out in its Rules “to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matter before it” (Rule 1.1). In Baker v. Kingston Hospital, 2009 HRTO 2079 (“Baker”), at para. 6, the Tribunal stated that there “must be a good reason” to waive the time limits set out in the Rules. In addition, the length of the delay may be a factor in determining the appropriateness of extending the time limit. See, for example, Vonella v. Blake Jarrett and Company, 2010 HRTO 2158 (“Vonella”), where the delay was only two days.
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.
In Baker, the adjudicator extended the time limit for reactivation on the basis that the applicant intended to re-activate her Application and “took steps that she genuinely, albeit mistakenly, assumed were sufficient to do so”.
In Vinodolac v. Dufferin Peel Catholic District School Board 2012 HRTO 274 (“Vindolac”), the adjudicator concluded that the applicant had not expressed an intention to reactivation his Application.
29In this case, the applicant submits that he should not be penalized because of the failure of his representative to appropriately represent him by failing to reactivate the Application within 60 days of the completion of the ESA process. He submits that he trusted Mr. Morrison and accepted his advice that the human rights matter was likely to settle with the respondents and that Mr. Morrison had, in any event, re-activated the Application when he in fact had not.
30If the applicant in this case was led to believe that his representative had filed a request to reactivate when this request was not in fact made, there could be good reason to extend the time limit to reactivate an Application under Rule 14. However, on the applicant’s account, he was aware by approximately November 2010 that the request to reactivate had not in fact been made. Mr. Khan confirmed this to the applicant. However, the actual request to reactivate was not filed with the Tribunal until December 2011. The applicant does not allege that Mr. Khan misled him into thinking something had been done when it had not.
31There is no explanation for why the applicant did nothing to reactivate the Application until December 2011, more than a year after the applicant was aware that the reactivation request had not been filed. There is no explanation for why the applicant or Mr. Khan did not respond to the Registrar’s letter of May 5, 2011, asking for an update. There is no explanation for Mr. Khan’s letter of November 16, 2011, asking for an “update” when he was aware that the reactivation request had not been filed, and no explanation for the further delay before the request to reactivate was finally filed in December 2011.
32In the circumstances of this case, I find that there is not good reason to extend the time limit to reactivate the Application. The Application is accordingly dismissed.
Dated at Toronto, this 27th day of August, 2012.
“Signed by”
Brian Cook
Vice-chair```