Fay Marc-Ali v. Kelly Graham, 2012 HRTO 502

Human Rights Tribunal of Ontario

Between:

Fay Marc-Ali Applicant

• and -

Kelly Graham Respondent

• and -

Amalgamated Transit Union, Local 113 Intervenor

Interim decision

Adjudicator: Ian R. Mackenzie Date: March 9, 2012 Citation: 2012 HRTO 502 Indexed as: Marc-Ali v. Graham

APPEARANCES / WRITTEN SUBMISSIONS

Fay Marc-Ali, Applicant ) Roger Rowe, Counsel Kelly Graham, Respondent ) Steve Lavender, Counsel Amalgamated Transit Union, Local 113, Intervenor ) Ian J. Fellows, Counsel

1Fay Marc-Ali has requested a reactivation of her Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). In an Interim Decision issued on June 10, 2010 (2010 HRTO 1321) the Tribunal deferred the Application pending the determination of a duty of fair representation complaint before the Ontario Labour Relations Board (the "OLRB") filed under section 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, as amended.

Background

2The OLRB issued its decision on March 9, 2011. Rule 14.4 requires that a request to proceed with a deferred application be filed no later than 60 days after the conclusion of the other proceeding. The applicant requested reactivation on July 21, 2011. The respondent and intervenor have submitted that the reactivation Request is untimely and the Application should therefore be dismissed.

3An oral summary hearing to determine whether it was appropriate to allow the reactivation of the Application was ordered by the Tribunal. The parties also provided written submissions.

4The applicant is an operator with the Toronto Transit Commission. Her Application alleges discrimination in employment on the basis of sex and colour. The allegations in her Application concern discipline imposed by her supervisor (the named respondent) for taking a break and then subsequently challenging the manner in which the supervisor treated her. The applicant is a member of Amalgamated Transit Union, Local 113 (the intervenor) and it filed a grievance on her behalf. The grievance was settled during the grievance process. The applicant subsequently filed a duty of fair representation complaint against the intervenor.

5When the applicant filed her human rights Application she was unrepresented. She also filed a number of Requests for Orders During Proceedings prior to retaining counsel. She was represented by counsel for the summary hearing that dealt with a number of issues, including her Request to defer the Application.

6In the Interim Decision, at para. 14, the parties' attention was directed to Rules 14.3 and 14.4 "which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process".

7Rules 14.3 and 14.4 state:

14.3 Where a party wishes the Tribunal to proceed with an Application which has been deferred the request must be made in accordance with Rule 19.

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.

8The applicant was unrepresented for part of the OLRB proceeding, but was represented by the same counsel as for the Tribunal proceeding (Roger Rowe) for the submissions stage of the proceedings. The decision of the OLRB was issued on March 9, 2011. The OLRB dismissed the complaint against the union.

9On June 21, 2011, the Tribunal sent a standard letter to the Applicant and to the counsel on record with the Tribunal (Roger Rowe) asking for a status update on the OLRB proceeding. The letter required the applicant to advise the Tribunal whether the OLRB proceeding was ongoing and when it was expected to be completed, within 30 days of the date of the letter. The letter referred the parties to Rules 14.3 and 14.4, "which outline the procedure by which the Application may be brought back on after the conclusion of the other proceeding". The letter was also sent by email to the applicant, her counsel, and the other parties. Mr. Rowe responded to the email from the Tribunal on June 22, 2011, stating that he would review and respond to the letter. Counsel for the respondent replied by letter on June 23, 2011, enclosing a copy of the decision of the OLRB, and noted that the deadline for a reactivation request had passed. The respondent requested that the Application be dismissed as abandoned.

Submissions

10On July 21, 2011, the applicant's counsel wrote to the Tribunal requesting reactivation of the Application. On behalf of the applicant he also made submissions on why the deadline for requesting reactivation should be extended by the Tribunal (summarized below). Further submissions were received from the respondent, from the intervenor, and from the applicant. Those submissions are also summarized below.

11The applicant submitted that, for financial reasons, she was not in a position to continue retaining the services of a lawyer until July 2011. She stated that she was not aware of the 60-day limitation period and that at all times she maintained a continuing intention to proceed with the Application. She also submitted that there is significant merit in her Application and the OLRB proceeding did not address the substance of the Application. There is minimal prejudice to the respondent and intervenor in proceeding with a hearing on the merits, whereas there is significant prejudice to the applicant if the merits of her Application are not adjudicated.

12The applicant also submitted that Rule 1.1 required the Rules to be interpreted and applied in such a way as to "facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matters before it". Rule 5.2 allows the Tribunal to vary or waive the application of the Rules, in accordance with Rule 1.1.

13The respondent submitted that the applicant was represented by Mr. Rowe in the teleconference call hearing of the request for deferral. The Interim Decision clearly directed the parties attention to Rules 14.3 and 14.4 (at para. 14). The applicant was represented by Mr. Rowe at the OLRB hearing on September 9, 2010. The OLRB decision was issued on March 9, 2011 and a copy was sent to the applicant and to her counsel. The applicant was able, without the assistance of counsel, to file her Application and a further four Requests for Orders During Proceedings.

14The respondent submitted that Mr. Rowe had not provided the Tribunal with the appropriate notice that he was no longer representing the applicant for the period after the Tribunal's deferral decision until July of 2011 (as required by Rule 1.15).

15The respondent submitted that the applicant was still employed with the TTC and could not argue that she was unable to afford legal counsel.

16The intervenor concurred with the submissions of the respondent. The intervenor submitted that the applicant and her counsel were clearly aware of the requirements for reactivating the Application. The parties were advised of the Rules in the conference call and in the Interim Decision.

17Counsel for the applicant submitted that he had not been retained for the entirety of either the OLRB proceedings or these proceedings. He described his involvement as "quite limited". The applicant submitted that she was in a very vulnerable position as a self-represented party against represented parties and she was "understandably reluctant to continue … until she was in a position to retain counsel".

18The respondent submitted that they were prejudiced by the delay in requesting reactivation. One of the witnesses was no longer employed by the respondent. In addition, the events in issue occurred more than three years ago. The applicant submitted that there was minimal prejudice to the respondent and intervenor.

Decision

19The delay in filing the reactivation Request is approximately two and a half months. 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.

20The 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.

21In 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".

22In Vinodolac v. Dufferin Peel Catholic District School Board 2012 HRTO 274 ("Vindolac"), the adjudicator concluded that the applicant had not expressed an intention to reactivate his Application.

23In this case, the applicant has relied on two grounds for her failure to file her Request to Reactivate her Application: the fact that she was unrepresented until July of 2012 and the fact that she was not aware of the 60-day time requirement.

24Many applicants before the Tribunal are unrepresented. The fact that the applicant was not represented for parts of the proceedings is not a valid reason for failing to meet the time limits set out in the Rules.

25In addition, the applicant was advised on a number of occasions that she should consult the Rules, and in particular Rules 14.3 and 14.14. This was brought to her attention in the Interim Decision granting deferral. It was also brought to her attention in the letter sent by the Tribunal to the applicant and her counsel on June 21, 2011. Counsel replied to that email on the following day, so was clearly aware of its contents. The respondent referred to the Rules in correspondence to the Tribunal (copied to the applicant and her counsel) on June 23, 2011. In spite of this, the applicant waited 30 days after being reminded of the Rules before requesting that her Application be reactivated.

26In my view, it was not reasonable for the applicant to wait as long as she did to make her Request to Reactivate the Application, in the circumstances.

27In cases involving timeliness under section 34 of the Code, the Tribunal has concluded that it does not need to examine the prejudice to the respondents in allowing an application to proceed, in the absence of a good faith reason for the delay. See Esanu v. Georgetown Men's Non-Contact Hockey League, 2009 HRTO 579. However, in the case of timeliness under the Rules, adjudicators have considered the prejudice to the respondents in coming to a determination on whether to exercise discretion to extend the time limit. In Vinodolac, the adjudicator accepted that some prejudice for the respondents might result from the late notice of the reactivation Request (in that case more than five months). In this case, the delay is two and a half months. In Vonella, the adjudicator allowed the extension because the delay was short (2 days) and because the respondents had not alleged any specific prejudice to their ability to respond to the Application.

28Although delay, by itself, may result in a deemed prejudice to the respondent, in my view, such a delay would need to be significant. In most cases, the respondent should have to demonstrate specific or actual prejudice to its ability to respond to the Application. In this case, I do not find that a delay of two and a half months is sufficient, by itself, to demonstrate prejudice. The respondent has relied on the fact that a witness is no longer employed by it and may be difficult to reach, as a specific prejudice. This is not a prejudice that arises out of the delay in the reactivation Request. It may be a prejudice that arises out of the deferral itself. However, that is not a relevant factor in determining whether or not prejudice will result from extending a time limit for reactivation.

29The respondent and intervenor have not demonstrated any prejudice to a reactivation of the Application.

30The Request to Reactivate the Application is therefore allowed.

31The respondent has sought early dismissal of the Application pursuant to section 45.1 of the Code, on the basis of a settlement of a grievance. A hearing will be scheduled to determine whether the Application should be dismissed on that basis.

32I am not seized.

Dated at Toronto, this 9th day of March, 2012.

"signed by"________________

Ian R. Mackenzie Vice-chair