HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dennis Jerrett
Applicant
-and-
Oakridge Ford Sales (1981) Ltd.
Respondent
INTERIM DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Jerrett v. Oakridge Ford Sales (1981) Ltd.
WRITTEN SUBMISSIONS
Dennis Jerrett, Applicant ) Michael Klug, Counsel
Oakridge Ford Sales (1981) Ltd., Respondent ) Lorraine Por, Counsel
INTRODUCTION
1The purpose of this Interim Decision is to deal with the applicant’s requests that the Tribunal (1) disregard the respondent’s late Response to the Application, and (2) reactivate the deferred Application.
BACKGROUND
2On August 14, 2012, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In his Application, he acknowledged that he had also filed an Employment Standards claim with the Ministry of Labour, but did not request that the Tribunal defer consideration of his Application until that proceeding was completed.
3On September 7, 2012, the Tribunal issued a Notice of Application to the respondent. The respondent was advised that a Response must be filed with the Tribunal by October 12, 2012. The respondent then failed to file a Response by October 12, 2012.
4On October 30, 2012, the Tribunal issued an Interim Decision, 2012 HRTO 2070, which directed the respondent to file a Response with the Tribunal within 10 days of the date of the Interim Decision, together with an explanation of why the Response was not filed in accordance with the Notice of Application. The Interim Decision also warned the respondent that if a Response was not received, the Tribunal may proceed without further notice to the respondent and may take any or all of the steps set out in Rule 5.5. of the Tribunal’s Rules of Procedure. Rule 5.5 provides:
Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:
a) deem the Respondent to have accepted all of the allegations in the Application;
b) proceed to deal with the Application without further notice to the Respondent;
c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;
d) decide the matter based only on the material before the Tribunal.
5On November 8, 2012, the respondent’s legal counsel filed a Response to the Application, and provided the following explanation for filing it late:
The reason for the delay in not providing this Response in the requested timeframe is that the lawyer for the Applicant had in fact sent a copy of the Application to me personally on August 3, 2012. At that time, it had not been finalized by the Tribunal and I had instructed the Human Resource Consultant for the Respondent to await the actual copy from the Tribunal itself which would then give us the appropriate time in which to respond.
When the Human Resources Consultant received the finalized Application from the Tribunal, she did not realize that the Application as received by the Tribunal was different than the Application received by me earlier. It was not until she received the Interim Decision advising that there was no Response put in by the Respondent and providing a further ten days, in which to provide a Response that she realized there had been confusion. The letter and Application from the Tribunal was then forwarded to me.
6In its Response, the respondent also requested that the Tribunal defer consideration of the Application until the Employment Standards proceeding was completed.
7On November 14 and 28, 2012, the applicant filed a Request for an Order During Proceedings (“RFOP”) and a supplementary letter, which requested that the Tribunal disregard the respondent’s late Response to the Application, and take all of the steps set out in Rule 5.5 of the Tribunal’s Rules because the respondent had failed to provide a valid explanation for filing a late Response.
8On November 21, 2012, the applicant filed a Reply to the Response, which consented to deferring consideration of the Application until the Employment Standards proceeding was completed.
9On November 22, 2012, the respondent filed a Response to the RFOP, which opposed the applicant’s request that the Tribunal disregard the respondent’s late Response to the Application.
10On December 7, 2012, the Tribunal deferred consideration of the Application pending the completion of the Employment Standards proceeding.
11On October 2, 2013, the applicant filed an RFOP, which requested that the Tribunal reactivate his deferred Application because the proceeding before the Ontario Labour Relations Board (the “OLRB”) has concluded. He attached a copy of an OLRB Decision dated October 1, 2013.
12The respondent has not filed a Response to the RFOP, and the time for doing so has now passed.
ANALYSIS
Late Response
13Rule 8.1 of the Tribunal’s Rules provides that to respond to an Application under s. 34 of the Code, a respondent must file a complete Response not later than 35 days after a copy of the Application was sent to the respondent by the Tribunal.
14However, the Tribunal may waive the application of its Rules as it considers appropriate to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matters before it. See Rules 5.2 and 1.1.
15In my view, the application of the 35-day time limit in Rule 8.1 should be waived, and the Response should be accepted for processing. The respondent failed to file its Response in a timely manner because of an error, but there is no evidence that that any prejudice will result to the applicant if the time limit is extended. I would add that I find it somewhat surprising that the applicant is taking such a hard line on this issue given that he contributed to the respondent’s error by delivering a copy of the Application to the respondent contrary to Rule 6.6 of the Tribunal’s Rules. Rule 6.6 clearly states that the Application “will be sent by the Tribunal to the Respondent(s)…” [Emphasis added]
16Accordingly, the applicant’s request that the Tribunal disregard the respondent’s late Response to the Application is dismissed.
Reactivation of the Application
17Rules 14.3 and 14.4 of the Tribunal’s Rules provide that where a party wishes to proceed with an Application which has been deferred, the party must file an RFOP with the Tribunal and deliver it to the other parties within 60 days after the conclusion of the other proceeding, and must include a copy of the decision or order in the other proceeding, if any.
18In my view, the Application should be reactivated because the applicant has complied with the requirements in Rules 14.3 and 14.4, and the respondent has not opposed his reactivation request.
19Accordingly, the applicant’s request that the Tribunal reactivate his deferred Application is granted.
20Given that the parties have indicated a willingness to participate in mediation, the file will be placed in the queue for scheduling a mediation in this matter.
ORDER
21The Tribunal makes the following orders and directions:
The Response is accepted for processing.
The Application is reactivated.
The file will be placed in the queue for scheduling a mediation in this matter.
22I am not seized of this matter.
Dated at Toronto, this 26th day of November, 2013.
“Signed by”
Ken Bhattacharjee
Vice-chair