George v. A. Raymond Tinnerman Manufacturing Hamilton, 2012 HRTO 387

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenlen George

Applicant

-and-

A. Raymond Tinnerman Manufacturing Hamilton, Inc., Slava Banfi, Matthew Dusureault, Carl Vegelj, Tinnerman Palnut Engineered Products, Inc., Tinnerman Palnut, Inc., Tinnerman Palnut Engineered Products (Canada) Corp. and A. Raymond et Cie

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: February 23, 2012

Citation: 2012 HRTO 387

Indexed as: George v. A. Raymond Tinnerman Manufacturing Hamilton

1This is an Application filed on September 21, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the grounds of disability and family status, as well as reprisal.

2The respondents filed a Response on December 7, 2011. Included in the Response is a request to defer the Application pending the completion of an appeal process before the Workplace Safety and Insurance Board (WSIB). The respondents also filed a Request for an Order During Proceedings (RFOP) seeking dismissal of the Application as against all respondents but one, A. Raymond Tinnerman Manufacturing Hamilton, Inc.

3The Tribunal delivered the Response to the applicant and directed her to file a Reply, including complete submissions in response to the request to defer, by January 11, 2012.

4The applicant did not file a Reply. The respondents, by correspondence to the Tribunal dated January 16, 2012, requested that the Tribunal dismiss the Application because of the failure to file a Reply.

5In my Case Assessment Direction of January 24, 2012, I noted that the applicant had not filed a Reply and the time for doing so had passed. I also noted that the applicant had not filed a Response to the RFOP and that deadline had also passed. I directed the applicant to file a Reply and a Response to the RFOP within two weeks of the date of the CAD, failing which the Tribunal may decide she has abandoned the Application and dismiss it on that basis.

6The CAD was sent to the applicant’s counsel and the respondents’ counsel. The Tribunal’s records indicate that there was no answer at the fax number provided by the applicant’s counsel and it was therefore sent by email.

7The extended deadline for filing the Reply and Response to the RFOP was February 7, 2012. The applicant did not file either by this deadline. On February 9, 2012 counsel for the respondents’ renewed its request for dismissal of the Application on the basis of the failure to submissions as directed. Its correspondence was copied to the applicant’s counsel.

8On February 10, 2012, the applicant contacted the Tribunal directly, not through legal counsel, inquiring about the status of her Application. The Tribunal sent her a copy of the January 24, 2012 CAD, and advised her to follow up with her legal representative. Counsel for the respondents was copied with this correspondence.

9The respondents made submissions on February 13, 2012, in response to this correspondence, once again requesting the Tribunal to dismiss the Application. On the same date, the applicant wrote to the Tribunal expressing her concern over the matter, and stating that she has been attempting to contact her legal representative since the end of December and has not been able to make contact. She stated that she had renewed those efforts on that date on receipt of the CAD, with no success. On February 15, 2012, she stated that she is in the process of obtaining a new legal representative and asks for an 8 week extension to secure new counsel and respond to the CAD.

10The respondents object to the granting of any further extensions to the applicant. Among other things, they state that granting the request would violate their rights to have the Application dealt with within a reasonable period of time. They state that almost 18 months have passed since the applicant left the employ of one of the respondents and with the passage of time, the memories of everyone begin to fade.

DECISION

11The Tribunal declines to dismiss the Application. Although the applicant has not filed a Reply or Response to the Request within the times specified in the Tribunal’s Rules, the Tribunal may relieve against the failure to comply, and may vary or waive the application of its Rules. The same holds true with respect to the applicant’s failure to comply with the times specified in the CAD of January 24, 2012.

12The Tribunal acknowledges the respondents’ interests in having the Application dealt with within a reasonable time. Applicants are also presumed to share the same interest in the expeditious resolution of the merits of applications before the Tribunal. Although there may be some prejudice to the respondents in granting the extensions sought, my assessment of this prejudice must also take into consideration that the respondents have themselves sought deferral of the Application. If the respondents’ request to defer is granted, the resolution of the Application may be delayed until the completion of the WSIB appeal in any event.

13I therefore view the potential prejudice to the respondents in granting the request to be minimal. Weighed against this is the applicant’s need to obtain new legal representation in order to file her Reply and Response to the Request as directed by the CAD, requirements she only learned about on February 10, 2012.

14In these circumstances, I find it fair and just to grant the applicant an extension of time. I therefore vary the times specified in the CAD of January 24, 2012 and direct that the Reply and Response to the Request be filed by March 20, 2012. If the applicant does not file the submissions as directed, the Tribunal may decide she has abandoned the Application and dismiss it on that basis.

15In arriving at the above determination, I have had no regard to further correspondence on this matter received after February 15, 2012.

16I am not seized of this matter.