Baccala v. Extendicare (Canada), 2013 HRTO 1726

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Caterina Baccala

Applicant

-and-

Extendicare (Canada) and Medex Extendicare

Respondents

DECISION

Adjudicator: David Muir

Date: October 11, 2013

Citation: 2013 HRTO 1726

Indexed as: Baccala v. Extendicare (Canada)

1This is an Application filed under section 53(5) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.

2This Application was initially deferred at the request of the respondents by Tribunal Decision 2010 HRTO 603, pending the conclusion of a proceeding before the Workplace Safety Insurance Appeals Tribunal (the “WSIAT”). The Tribunal’s decision 2010 HRTO 603 was issued March 19, 2010.

3By letters dated December 1, 2010 and February 2, 2011, respectively, the Tribunal wrote to the parties with Directions requesting an update on the status of the WSIAT proceeding.

4The respondents did not respond. The applicant’s representative wrote to the Tribunal on February 10, 2011, indicating that she had not abandoned the instant Application under the Code.

5In a Case Assessment Direction (“CAD”) dated June 17, 2011, the applicant was directed to comply with the Tribunal’s prior Directions to advise the Tribunal of the status of the WSIAT proceeding; i.e., if the hearing had begun or if a date has been set for a proceeding, etc. On July 5, 2011, the applicant’s representative wrote to the Tribunal advising that the proceeding before the WSIAT was inactive, but that the applicant was taking steps to have the file “activated as soon as possible and getting a final conclusion to the matter.”

6In a CAD dated October 5, 2011, the applicant was directed again to advise the Tribunal and the respondents of the status of the WSIAT proceeding within 20 days of the date of the CAD, failing which the Application might be dismissed as abandoned. The applicant’s representative wrote to the Tribunal on October 12, 2011, and advised that the WSIAT file was inactive for four months beginning July 25, 2011, and that the Office of the Worker Advisor was taking over carriage of that matter. The status of the WSIAT process remained unknown.

7In a CAD dated December 16, 2011, the applicant was directed to advise the Tribunal and the respondents of the status of the WSIAT proceeding within 20 days of the date of the CAD failing which the Application may be dismissed as abandoned.

8The applicant did not respond in any fashion to the December 16,2011 CAD. In a further CAD dated January 24, 2012, the applicant was directed to confirm within seven days of the date of the CAD the status of the WSIAT proceeding and her intentions with respect to this Application, failing which the Application would be dismissed as abandoned. Similarly there was no response to this CAD. In light of the applicant’s apparent failure to respond in any way to these last two CADs, the Application was dismissed as abandoned in 2012 HRTO 369.

9On March 12, 2012, the applicant filed a Request for Reconsideration (“Request”) of the Decision. The Tribunal acknowledged receipt of the Request and requested the submissions of the respondents. Although given an opportunity to respond, the respondents provided no submissions. The Request was granted in 2012 HRTO 1100.

10In this same Decision it was noted that this Application had been deferred since March 2010. It relates to events in 2005 and 2006. Although the ARO decision to which the applicant has objected was made in October 2007, the appeal to the WSIAT remains inactive

11It was also observed that the applicant appeared to have taken few if any concrete steps to move the WSIAT proceeding forward. For example, in July of 2011 the applicant’s representative indicated that he was making arrangements to have the Office of the Worker Advisor represent the applicant in the WSIA proceeding. Later in the year there was indication that the applicant was seeking to obtain a legal aid certificate.

12In June 2012 the applicant was directed to take the appropriate steps to move the WSIA proceeding forward within 60 days of the date of the Reconsideration Decision, failing which further Directions would be made to the parties with respect to the continued deferral of the case. Nothing was heard from the applicant.

13In a CAD issued on February 11, 2013 the applicant was directed to confirm the status of the WSIA proceeding within seven days, failing which the Application may be dismissed as abandoned.

14On March 26, 2013, the applicant provided a copy of a letter from the WSIAT dated February 26, 2013 indicating that the WSIA appeal remained inactive. The WSIAT directed that the applicant contact the WSIAT before May 26, 2013 with respect to the status of that proceeding.

15In a further CAD issued to the parties on September 5, 2013 it was proposed that despite the overlap in the proceedings a hearing might be scheduled. The parties were directed to provide their submissions if they opposed the scheduling of a hearing in this case. The respondent objected to the scheduling of the hearing and asking instead that the Application be dismissed as an abuse of process. The applicant did not respond to the CAD or the respondent’s submissions.

16In a CAD issued on September 23, 2013 the applicant was directed to deliver and file her submissions in response to the respondent’s submissions within 14 days of the date of the CAD failing which the Application may be dismissed as abandoned.

17The applicant did not respond to the September 23, 2013 CAD nor has the applicant communicated with the Tribunal in some time. As indicated above the applicant has taken no steps to to move the other matter forward in years and has only fitfully participated in this proceeding. In all of the circumstances I find that that applicant has abandoned this Application and it is dismissed.