Harvia Gray v. Seneca College of Applied Arts and Technology and Arthur Burke, 2013 HRTO 1133

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harvia Gray

Applicant

-and-

Seneca College of Applied Arts and Technology and Arthur Burke

Respondents

DECISION

Adjudicator: Mary Truemner

Date: June 27, 2013

Citation: 2013 HRTO 1133

Indexed as: Gray v. Seneca College

APPEARANCES

Harvia Gray, Applicant

Davies Bagambiire, Counsel

Seneca College of Applied Arts and Technology and Arthur Burke, Respondents

Ann Burke, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging reprisal and discrimination with respect to employment because of race, colour and sex.

BACKGROUND

2In an Interim Decision dated January 22, 2009, 2009 HRTO 77, the Tribunal determined that the Application would be deferred, pending the completion of a grievance arbitration proceeding related to the allegations in the Application. The Tribunal directed the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which outline how an application may be brought back on after the conclusion of the other proceeding. In particular, Rule 14.4 of the Tribunal’s Rules states as follows:

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 (sixty) 60 days after the conclusion of the other proceeding…

3On May 25, 2009, newly retained counsel for the applicant, Davies Bagambiire, wrote to the Tribunal to ensure that all correspondence should be directed to him and not to the applicant directly. Also on May 25, 2009, the Board of Arbitration issued an Interim Award noting that the union had that day advised the Board in writing that it has withdrawn its grievance. On July 24, 2009, the Board issued an Award allowing the union to withdraw the grievance.

4On June 20, 2011, not knowing that the grievance had been withdrawn and that the grievance proceeding had ended with the Board’s Award of July 24, 2009, the Tribunal wrote to the parties, including both the applicant and the applicant’s counsel, requiring that the applicant advise the Tribunal whether the grievance was still ongoing, and, if possible, when it was expected to be completed. The Tribunal again directed the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules.

5Over four months later, by letter dated November 7, 2011, the applicant asked that the Application not be dismissed and requested an extension until November 14, 2011 to file a Request to re-activate her deferred Application. The applicant did not file the Request.

6By letter dated July 25, 2012, having heard nothing, the Tribunal directed the applicant to file a Form 10 to request the re-activation of her Application or a Request to Withdraw. By letter dated August 9, 2012, the applicant requested an extension until August 17, 2012 to file the Request to re-activate.

REQUEST TO RE-ACTIVATE

7On August 16, 2012, the applicant filed a Request for an Order During Proceedings (“the Request”), seeking re-activation of her deferred Application. Over three years had passed since the grievance proceeding had ended. The applicant acknowledged that she filed the Request after the 60 day period set out in Rule 14.4, but requested the indulgence of the Tribunal to permit the Application to proceed.

Written submissions

8The applicant, through her counsel, explained that she is the mother of an autistic child with special needs, which reduces the time she has for other matters. The applicant advised that she had been represented by the Human Rights Legal Support Centre, but asserted that this representation was not effective. The applicant further explained that she had been unable to find employment and retain counsel to assist her with her Application. She eventually retained her current counsel, Mr. Bagambiire. Mr. Bagambiire, however, suffered health issues that caused him to reduce his hours and was also involved in a long HIV related murder trial. The applicant submitted that the delay has not resulted in any prejudice to the respondent.

9On August 30, 2012, the respondents filed a Response to the applicant’s Request, in which they opposed the applicant’s request to re-activate the deferred Application, on the basis of delay. The respondents submitted that an arbitration panel permitted the grievance to be withdrawn, and rendered its decision on July 24, 2009, over three years before the applicant filed the Request to reactivate the Application. The respondents submitted that the record demonstrates that Mr. Bagambiire acted for the applicant in the Fall of 2008 with respect to her Application at the Tribunal, and asked the union to hold her grievance in abeyance based on his advice that an Application to the Tribunal was a better option for her.

10The respondents noted that the applicant worked full time for the College after she had her children, who were four or five years old when her employment was terminated. Consequently, the respondents submitted that it is unreasonable to suggest that her child care responsibilities prevented her from communicating with counsel to file her Request after the withdrawal of her grievance. In that vein, the respondents also submitted that the applicant has been engaged in the Ontario Self-Employment Benefit program, which requires a significant time commitment from participants.

11The respondents submitted that the extreme delay in filing the Request would cause the respondents prejudice. The respondents submitted that it is no longer able to contact former students named in the Application and the passage of time can in any event be expected to impact witnesses’ memories. The organizational respondent also advised that the individual respondent is no longer employed by the College.

12The respondents therefore submitted that the Application should be dismissed as the applicant failed to file the Request to re-activate in accordance with Rule 14, she has not provided a good reason for this failure, and the delay has caused prejudice to the respondents.

Teleconference Hearing

13Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties a chance to make oral submissions. On September 19, 2012, the Tribunal directed that the parties make oral argument at a teleconference hearing with respect to the re-activation Request.

14At the teleconference hearing, Mr. Bagambiire restricted himself to two arguments that the three year delay was reasonable: 1) the applicant has two children who are twins, one of them autistic with high needs and with part-time attendance only at school, resulting in the applicant having had little time for anything besides caring for her children; and 2) the applicant was confused about the difference in the grievance and Tribunal processes so that she might have believed that her union was going to be responsible for reactivating her Application at the Tribunal.

15The respondents relied upon their written submissions to oppose the arguments made by Mr. Bagambiire, and pointed to the applicant’s withdrawal from the grievance process and her lack of engagement with her union to substantiate their position that any claim by the applicant that she had expected her union to represent her at the Tribunal, (and re-activate her Application), was unbelievable.

ANALYSIS

16Rule 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.

17Mr. Bagambiire informed the Tribunal on May 25, 2009 that he was retained by the applicant. He had earlier sent letters to the applicant’s union to inform its representative that his client preferred the Tribunal process to the grievance process, and that she did not wish to proceed with her grievance. The union withdrew the grievance on May 25, 2009. The arbitration award of July 24, 2009 allowed the withdrawal. Mr. Bagambiire could not adequately explain why, in the approximately three years after that date, his client was unable to find a few minutes, while her children were in school, to discuss her Application with him and to give him instructions to reactivate her Application. I do not find that having an autistic child, who attends school at least part-time each day, is a good reason for a parent, even a single parent, to not instruct her counsel to reactivate her Application. Nor do I find that having a second child who attends school full-time is a factor that might seriously compound any constraints for the applicant to instruct her counsel. In my opinion, having school-aged children, one of whom is autistic, is not sufficient to persuade me to exercise my discretion and allow a delay of approximately three years, particularly in the circumstances where the respondents assert they are prejudiced.

18With respect to Mr. Bagambiire’s argument that the applicant might have been confused about who was representing her at the Human Rights Tribunal, it appears that this is a theory. The applicant did not attend the teleconference hearing. At any rate, it is clear that Mr. Bagambiire was retained by the applicant before and after the withdrawal of the grievance to represent her in the proceedings regarding her Application at the Tribunal. Any confusion on the part of the applicant could have been remedied with an inquiry to Mr. Bagambiire. And if the applicant for some reason did not understand that Mr. Bagambiire was representing her, then she had the information to request the re-activation of her Application in a timely way herself because the Tribunal sent the Interim Decision deferring the Application to the applicant directly. That Interim Decision told her, “Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 of the Tribunal’s Rules of Procedure within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).”

19The applicant knew that if she wanted to proceed with the process at the Tribunal, then she was to act quickly in either instructing her counsel to re-activate the Application, or do it herself. I do not find the applicant’s supposed confusion about who was representing her to be a good reason for the extraordinary delay of approximately 3 years. In my view, this is a significant delay that would reasonably result in some prejudice to the respondents from the inevitable impact of the passage of time on their ability to contact witnesses and on their witnesses’ memories. The respondents have confirmed that they are unable to contact some witnesses because of the extraordinary passage of time.

20In my view, the applicant does not have a good reason for waiting as long as she did to file her Request to re-activate her Application. Given the absence of a good reason for the delay and the prejudice to the respondents, the Request to re-activate the Application is denied.

21The Application is therefore dismissed.