Neathly v. University Health Network, 2013 HRTO 1385

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elaine Neathly

Applicant

-and-

University Health Network

Respondent

RECONSIDERATION DECISION

Adjudicator: Brian Cook

Date: August 14, 2013

Citation: 2013 HRTO 1385

Indexed as: Neathly v. University Health Network

Introduction

1On May 21, 2013, the Tribunal issued Decision 2013 HRTO 868. It dismissed the Application as abandoned. The applicant subsequently filed a Request for Reconsideration in which she submitted that she had not abandoned the Application.

Background

2This Application was filed on November 8, 2012. It alleged discrimination in employment because of reprisal and disability. On review of the Application, it was not clear to the Tribunal how the applicant’s allegations related to the Code. As well, the Tribunal noted that the Application appeared to relate to alleged discrimination in the period from 2008 to June 2011. The last incident of alleged discrimination mentioned in the Application was in June 2011. Since the Application was not filed until November 8, 2012, it appeared that the Application was not filed within one year of the last incident of alleged discrimination. Section 34 of the Code provides:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

3The Tribunal issued a Notice of Intent to Dismiss, dated January 25, 2013. It invited the applicant to make submissions to clarify how the Application related to the applicant's Code-protected rights and whether the Application had been filed in accordance with section 34 of the Code.

4The applicant asked for an extension of time to make these submissions, and an extension to March 18, 2013 was granted. On March 14, 2013, the applicant asked for a further extension and an extension to April 2, 2013 was granted.

5On April 2, 2013, the applicant sent a note to the Tribunal asking that her case be put “in abatement” and indicated that she was intending to file a statement of claim in court.

6On April 10, 2013 the Tribunal noted that the applicant had still not filed any submissions in regard to the Notice of Intent to Dismiss. The Tribunal advised the applicant that she was required to file those submissions by April 29, 2013.

7The applicant sent a letter dated April 22, 2013 asking again that the matter be postponed because she was seeking a remedy in civil court. She did not address the issues raised by the Tribunal in the Notice of Intent to Dismiss.

8On May 21, 2013, the Tribunal issued Decision 2013 HRTO 868. It noted the history set out above, and dismissed the Application on the grounds that the fact that the applicant had not responded to the Notice of Intent to Dismiss meant that she had abandoned the Application.

9On June 17, 2013, the applicant sent a Request for Reconsideration. She indicated that she had not intended to abandon the Application and that she had not responded to the Notice of Intent to Dismiss because she had asked that the Application be put on hold because she was pursuing a civil action in court.

10On July 12, 2013, I issued another Case Assessment Direction. It noted that pursuant to section 34(11) of the Code, a person is not permitted to file an Application if a civil proceeding has been commenced in court in which the person is raising the same human rights issues as are raised in the Application. I also noted that the applicant had never addressed the issues raised in the Notice of Intent to Dismiss. I determined that, rather than deciding the Request to Reconsider, it was appropriate to allow the applicant to make submissions about the application of section 34(11) and also to make submissions on the issues raised in the Notice of Intent to Dismiss. The applicant was directed to provide these submissions by August 2, 2013. The applicant was advised that the Tribunal could dismiss the Application as an abuse of process if these submissions were not received and that it could also determine if the Application should be dismissed for the reasons set out in the January 25, 2013 Notice of Intent to Dismiss or under section 34(11) because the applicant had filed an civil proceeding.

11On July 25, 2013, the applicant sent a note to the Tribunal. The note stated: “I think I give you more than enough information.” Enclosed with the note was a letter the applicant sent to a writer at the Toronto Star. The letter sets out the applicant’s frustrations related to her employment with the respondent.

Conclusions

12There are three reasons why the Tribunal may not have jurisdiction. The first two were identified in the January 25, 2013 Notice of Intent to Dismiss and concern the fact that the applicant’s allegations do not clearly involve the Code and the fact that the Application was filed more than one year after the last incident of alleged discrimination. In addition, the Tribunal may not have jurisdiction to deal with her Application because she has started a civil action in court raising the same issues.

13The applicant has consistently refused to provide the Tribunal with information to allow the Tribunal to determine if it has jurisdiction to deal with her allegations of discrimination.

14The applicant has not provided the information requested by the Tribunal to allow the Tribunal to determine her Request for Reconsideration of the previous Decision that dismissed her Application.

DECISION

15The applicant’s refusal to provide information required by the Tribunal means that the Request for Reconsideration must be denied. Even if the Request for Reconsideration were to be allowed, the applicant's consistent refusal to provide information required by the Tribunal is an abuse of the Tribunal’s process and the Application would be dismissed on that basis. In addition, the Tribunal would not have jurisdiction to consider the Application because, based on the information in the Application, the Application relates to matters that occurred more than one year before the Application was filed and there is no good explanation for the delay.