HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jehan Beg

Applicant

-and-

Ramada Worldwide Inc. o/a Ramada Plaza Toronto Airport Hotel and Stage West Theatre, Mayfield Management Inc. o/a Stage West All Suite Hotel, and Rohan Chinniah

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: November 28, 2013

Citation: 2013 HRTO 1967

Indexed as: Beg v. Ramada Worldwide Inc.

WRITTEN SUBMISSIONS

Jehan Beg, Applicant ) Clara Matheson, Counsel

Rohan Chinniah, Respondent ) Philip Klumak, Counsel

INTRODUCTION

1The purpose of this Interim Decision is to decide whether the Application, which was deferred pending the conclusion of a criminal proceeding, should be reactivated.

BACKGROUND

2On April 3, 2013, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3On July 16, 2013, the Tribunal issued a Case Assessment Direction, which deferred consideration of the Application pending the conclusion of a criminal proceeding involving the individual respondent, who was the accused, and the applicant, who was the complainant.

4On September 27, 2013, the applicant filed a Request for an Order During Proceedings (“RFOP”), which requested that the Application be reactivated because the criminal proceeding has concluded. She stated that on September 23, 2013, a police constable notified her that the criminal proceeding had concluded sometime in July 2013. She also stated that Court Services informed her that it will take six to eight weeks to obtain documentation confirming that the criminal proceeding has concluded.

5On October 2, 2013, the applicant filed a letter with the Tribunal, which stated that Court Services has now informed her that the criminal proceeding concluded on July 4, 2013.

6On October 18, 2013, the individual respondent filed a Response to the RFOP, which opposed reactivating the Application. The other respondents have not filed a Response, and the time for doing so has now passed.

ANALYSIS

7Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure 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. In view of the fact that the criminal proceeding concluded on July 4, 2013, and the applicant did not file her RFOP to reactivate her Application until September 27, 2013, the RFOP was filed approximately 25 days outside the 60-day time limit in Rule 14.4.

8The 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. As such, where an RFOP to reactivate a deferred Application is filed outside the 60-day time limit in Rule 14.4, the Tribunal may, in appropriate circumstances, waive the application of the Rule, and allow the Application to be reactivated.

9In Marc-Ali v. Graham, 2012 HRTO 502, the Tribunal set out at paras. 20, 27 and 28 the factors that it will consider in deciding whether to waive the application of the 60-day time limit in Rule 14.4:

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.

(…)

In 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….

Although 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.

See also Baker v. Kingston General Hospital, 2010 HRTO 122; Vinodolac v. Dufferin Peel Catholic District School Board, 2012 HRTO 274; Mullings v. Global Alliance Worldwide Chauffeured Services Ltd., 2012 HRTO 1628; and Gray v. Seneca College, 2013 HRTO 1133.

10In her submissions, the applicant stated that the Tribunal should waive the application of the 60-day time limit and reactivate the Application for two reasons. First, she stated that her delay in filing the RFOP to reactivate her Application was incurred in good faith because she was not informed that the criminal proceeding had concluded until after the 60-day time limit, and she then filed the RFOP immediately. Second, she stated that the short length of the delay means that the respondents’ ability to respond to the allegations in the Application will not be substantially prejudiced.

11In his submissions, the individual respondent stated that the Tribunal should not waive the application of the 60-day time limit and reactivate the Application because the applicant has not put forth good reasons for the delay, and he is substantially prejudiced by the delay. The individual respondent did not explain why the applicant’s reasons are deficient, or how he is substantially prejudiced by the delay.

12In my view, the application of the 60-day time limit in Rule 14.4 should be waived, and the Application should be reactivated. The applicant has established that her delay in filing her reactivation request was incurred in good faith, namely, she was not informed that the criminal proceeding had concluded until after the 60-day time limit, and she then filed the RFOP immediately. Furthermore, the delay was short, and there is no evidence that any prejudice will result to the respondents if the time limit is extended.

13Within 35 days of the date of this Interim Decision, the respondents shall file their Response(s) (Form 2) to the Application with the Tribunal.

ORDER

14The Tribunal makes the following order and direction:

1. The Application is reactivated.

2. Within 35 days of the date of this Interim Decision, the respondents shall file their Response(s) (Form 2) to the Application with the Tribunal.

15I am not seized of this matter.