Zoila Davila v. McKesson Canada, 2012 HRTO 2156

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zoila Davila

Applicant

-and-

McKesson Canada

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: November 15, 2012

Citation: 2012 HRTO 2156

Indexed as: Davila v. McKesson Canada

WRITTEN SUBMISSIONS

Zolia Davila, Applicant ) Self-represented

McKesson Canada, Respondent ) Karen Sargeant, Counsel

1The applicant filed this Application under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), on November 4, 2011. The Application alleges discrimination with respect to employment on the basis of disability and age.

2The Application was deferred by way of Interim Decision 2012 HRTO 880 pending the conclusion of the applicant’s grievances and grievance proceedings.

3On September 12, 2012, the applicant filed a request to reactivate her Application on the basis that the union had withdrawn her grievances. The September 12th request to reactive was incomplete and the applicant was required to resubmit the request, which she did on September 19, 2012. The applicant provided correspondence from her union dated June 25, 2012, confirming that the union withdrew the grievances.

4On October 3, 2012, the respondent wrote to the Tribunal objecting to reactivation. The respondent argues that the union’s withdrawal of the grievances is a final disposition of the matter. The respondent further opposes reactivation on the basis that the applicant’s request was filed outside of the 60 days required by the Tribunal’s Rules of Procedures (“Rules”).

5Rule 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.

6By way of Case Assessment Direction dated October 16, 2012, the Tribunal provided the applicant with an opportunity to explain the delay in filing her reactivation request and also provided the respondent with an opportunity to file submissions in response to the applicant’s explanation of the delay.

7The applicant wrote to the Tribunal and indicates that the delay was caused by the fact that it is difficult for her to understand the law and rules because her English “is very basics (sic)” and that she is self-represented. She further submits that because of her financial constraints, she was unable to pay for faxes and transportation and did not have a printer or scanner.

8The respondent maintains its objection to the late request to reactivate. The respondent submits that the applicant’s explanations do not justify the delay. The respondents point out that the applicant has a responsibility to familiarize herself with the Tribunal’s process and the Interim Decision deferring the Application highlighted the 60-day timeline for filing requests to reactivate. The respondent notes that the applicant does not require a lawyer to proceed before the Tribunal and that the applicant’s equipment issues are an insufficient excuse. The respondent argues that it suffers prejudice in being compelled to respond to the applicant’s multiple claims.

DECISION

9The Tribunal’s Rules state that a request to reactivate a deferred application must be made no later than 60 days after the conclusion of the other proceeding.

10Some factors that the Tribunal has considered in assessing delay with respect to reactivation requests include the reason for the delay, the length of the delay, the potential prejudice to the respondents, and the Tribunal’s mandate to provide an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matter.

11The union’s letter to the applicant advising that her grievances were withdrawn was dated June 25, 2012. The applicant attempted to file her request to reactivate on September 12, 2012, approximately two weeks beyond the 60-day timeframe required by Rule 14.

12Other than the concern of having to defend against the grievances and this Application, the respondent did not identify any specific prejudice to its ability to respond to the allegations contained in the Application, should it proceed.

13Pursuant to Rule 1.7, the Tribunal has the discretion to lengthen time limits provided for in the Rules.

14I am prepared to grant an extension of time for the filing of the request to reactivate. The applicant is self-represented and indicates that her English language ability is limited. It is unclear when the applicant actually received the union’s letter advising her of the withdrawal of the grievances, and the delay in filing the reactivation request is relatively short. The respondent did not allege any specific prejudice to its ability to respond to the Application.

15In these circumstances, the request to reactivate is granted.

16I am not seized of this matter.