HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Hudson

Applicant

-and-

Corporation of the City of Kingston, Carl Smith, Damon Wells, Daryl Townsend and Judy Brick

Respondents

-and-

CUPE Local 109

Intervenor

DECISION

Adjudicator: Jay Sengupta Date: December 4, 2013 Citation: 2013 HRTO 2006 Indexed as: Hudson v. Kingston (City)

APPEARANCES

Donna Hudson, Applicant Self-Represented

Corporation of the City of Kingston, Carl Smith, Damon Wells, Daryl Townsend and Judy Brick, Respondents Christopher Edwards, Counsel

CUPE, Local 109, Intervenor Peggy Smith, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

Background

2In an Interim Decision dated May 4, 2011 (2011 HRTO 873), the Application was deferred by the Tribunal, pending the outcome of a grievance arbitration process in respect of two grievances filed on the applicant’s behalf by the intervenor trade union against the respondent employer.

3The Tribunal’s Interim Decision directed the applicant’s attention to Rules 14.3 and 14.4 of the Tribunal’s Rules, which outline how the Application could be brought back on after the conclusion of the grievance process. In particular, Rule 14.4 requires that a request to proceed with a deferred Application be filed no later than 60 days after the conclusion of the other proceeding and reads as follows:

14.4 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 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.

4The grievance arbitration process to which the Tribunal deferred concluded with the release of a decision by Arbitrator Elaine Newman, on August 11, 2011.

5On July 11, 2012, well past the 60 day time period set out in Rule 14.4, the applicant filed a Form 10 seeking to reactivate the deferred Application. In separate correspondence, the applicant submitted that the reason for the delay in filing the Form 10 seeking reactivation is that she believed that the union and counsel for the union would “be assisting with the Human Rights Complaint”.

6In a Form 11 filed on July 12, 2012, the respondents opposed reactivation of the Application. They also argued that if the request to reactivate were granted, the Application should be dismissed pursuant to section 45.1 of the Code on the basis that the substance of the Application had been appropriately dealt with in another proceeding, specifically the hearing before Arbitrator Newman.

7Subsequently, the Tribunal also received a Request to Amend the Application from the applicant, opposed by the respondent, on a number of grounds including delay, and a request by the union to intervene in the Application, that was opposed by the applicant and to which the respondents agreed.

8The matter was set down for a preliminary hearing by teleconference on June 27, 2013, following which an Interim Decision was issued: 2013 HRTO 1150. In that Interim Decision, the union’s request to intervene was granted and another date was set for the parties to appear in person to provide evidence on the issue of the applicant’s delay in seeking reactivation of the deferred Application and to hear the submissions of the parties on that issue and, if necessary, on the additional outstanding issues involving s.45.1 of the Code, the request to amend the Application and the related issue of delay in seeking to amend.

9During the in-person preliminary hearing on August 2, 2013, counsel for the applicant withdrew during the course of the proceeding. Although I asked the applicant if she wished to seek an adjournment or needed additional time either to retain alternate counsel or to prepare her submissions, the applicant declined and elected to proceed on the same day on her own behalf with the assistance of her spouse.

10The applicant and her spouse were provided with copies of relevant case law and given a brief time to prepare, following which I heard the parties’ submissions on the limited issue of whether the Application would be reactivated. For the reasons that follow, the applicant’s request to reactivate is denied and the Application is dismissed.

Decision

11As noted above, under Rule 14.4 of the Tribunal’s Rules of Procedure, a request to reactivate an Application must be filed within 60 days of the conclusion of the other proceeding to which the Tribunal deferred.

12That time limit is found in the Tribunal’s Rules and is not a statutory time limit. The Tribunal has the authority to lengthen or shorten time limits in the Rules, or waive or vary their strict application in order to ensure the fair, just and expeditious resolution of matters before it: Rule 1.7; Oliver v. South Simcoe Police Services Board, 2012 HRTO 863.

13The Social Justice Tribunals Ontario (“SJTO”) Common Rules, found in Part 1 of the Tribunal’s Rules of Procedure form part of the Rules of the Human Rights Tribunal. SJTO Common Rule A4.2 provides that the Tribunal may vary or waive the application of any rule or procedure.

14In exercising its authority, SJTO Common Rule A3.1 (formerly Rule 1.1) is also relevant in that it governs the interpretation of the Rules. It reads as follows:

A3.1 The rules and procedures of the tribunal shall be liberally and purposively interpreted and applied to:

(a) promote the fair, just and expeditious resolution of disputes,

(b) allow parties to participate effectively in the process, whether or not they have a representative,

(c) ensure that procedures, orders and directions are proportionate to the importance and complexity of the issues in the proceeding.

15In this case, there is no question that the applicant failed to file a request to reactivate the Application within the time limit specified in Rule 14.4. Accordingly, the issue to be determined is whether the Tribunal ought to exercise its discretion under the Rules to extend the applicable time limit or to waive the strict application of the Rule, so as to allow the applicant to request reactivation of the Application in July 2012.

16In certain cases, the Tribunal has stated that there must be a “good reason” for the Tribunal to exercise its power to waive the strict application of its Rules: see Baker v. Kingston Hospital, 2009 HRTO 2079; Vinodolac v. Dufferin Peel Catholic District School Board, 2012 HRTO 274. While these decisions were determined under previous Rules, since removed and replaced by similar SJTO Common Rules, I am satisfied the tribunal’s jurisprudence applying these powers is equally applicable to the interpretation and application of the Common Rules.

17Following on this, in Marc-Ali v. Graham, 2012 HRTO 502, the Tribunal stated that in determining whether there is a “good reason” to relieve against the time limits in its Rules, the Tribunal ought to apply the same principles as those established under section 34 of the Code, namely whether the delay in meeting the time limits has been incurred in good faith and whether any substantial prejudice would result if the time limit were extended.

18A number of decisions since have cited Marc-Ali for the proposition that, in determining whether to extend a time limit under its Rules, the Tribunal ought to consider whether the delay in meeting the time limits in the Rules has been incurred in good faith and whether any substantial prejudice would result to the other party if the time limit were extended.

19With respect, I disagree that in determining whether to extend a time limit contained in its Rules of Procedure, the Tribunal ought to employ the same analysis used under s. 34(2) of the Code to determine whether the Tribunal has jurisdiction to deal with an otherwise untimely Application.

20In my view, there is a crucial distinction between the time limit in s.34 of the Code and the time limits contained in the Tribunal’s Rules. Whereas the limitation period in s.34 of the Code goes to the Tribunal’s jurisdiction to determine an Application, and the Tribunal has no discretion to extend it (Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at para. 20), the Tribunal retains a broad discretionary power in the Rules of Procedure to relieve against the time limits contained therein.

21The Tribunal’s focus in determining whether to exercise this broad discretionary power is on ensuring the fair, just and expeditious resolution of an Application before it. With respect, I do not think it is helpful, necessary or appropriate to shift the focus away from these considerations, which are expressly identified in the Rules, to the “good faith” analysis that takes place under s.34(2) of the Code.

22In any event, I note that the adjudicator in Marc-Ali did extend the time limit in Rule 14.4, even though he was not persuaded that the applicant’s delay in filing a reactivation request was incurred “in good faith”. This was based on his finding that the respondent was not prejudiced by the delay in requesting reconsideration. Accordingly, I do not see Marc-Ali as standing for the proposition that an applicant must establish a good faith reason for failing to meet a time limit in the Tribunal’s Rules before the Tribunal will relieve against the strict application of the Rules.

23Finally, I am bolstered in my conclusion that there is no general requirement on parties to establish a “good faith” reason for failing to meet a time limit in the Tribunal Rules by Rule 26 of the Tribunal’s Rules of Procedure, which relates to requests for reconsideration of a final decision of the Tribunal.

24Rule 26.5.1 specifically provides that a request for reconsideration made more than 30 days following the Decision will not be granted unless the Tribunal determines that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. By contrast, Rule 14.4 does not contain such a requirement and in my view it would be inconsistent to interpret it as if it did. Clearly, if the Tribunal wished to make the time limit for reactivation requests subject to a “good faith” requirement, it could have done so, as it did with the time limit for reconsideration requests. The fact that it has not done so leads me to conclude that the Tribunal retains its usual broad discretion under Rule 1.7 to extend the time limit in Rule 14.4 in order to provide for the fair, just and expeditious resolution of any matter before it.

25It is my view, therefore, that more general interpretive principles are intended to apply to the time limit in 14.4 rather than the more specific test set out in 26.5.1 of the Rules and 34(2) of the Code.

26With this in mind, I now return to the case at hand and the issue of whether I ought to exercise my discretion to extend the time limit in Rule 14.4 for filing a request for reconsideration. Again, the question is whether it would be fair, just and expeditious in the circumstances to extend the time limit in Rule 14.4, in accordance with Rules 1.7, A3.1 and A4.2.

27The applicant filed materials in which she asserted that the reason she had not met the timeline was that she believed that the union and counsel for the union would “be assisting with the Human Rights Complaint”.

28It was in order to provide her with an opportunity to provide evidence in support of that assertion that the teleconference hearing was adjourned and the Tribunal reconvened the preliminary hearing in person.

29During the course of the preliminary hearing, the applicant provided evidence that was not consistent with her original position that the reason for the delay was her reliance on the union and union counsel whom she asserted were assisting her with her human rights litigation.

30Her evidence confirmed that she had filed the Application with the assistance of a privately retained lawyer unconnected to the intervenor union and without the advice or assistance of the intervenor union.

31She also acknowledged that a second privately retained lawyer unconnected to the intervenor union had, at different stages of the human rights process, given her advice and been retained to communicate in writing with the Tribunal on her behalf.

32For example, on the occasion of providing submissions to the Tribunal on the issue of deferral, the second lawyer had, in fact, been retained by her to make submissions in which she took a contrary position to that of the union. Specifically, it is noteworthy that the applicant’s then counsel, presumably on her instructions, supported deferral in April 2011, while the union opposed it.

33There is no indication that in the intervening period she engaged in discussions with the union and established that she now sought to have it act for her in respect of the ongoing and now deferred human rights litigation.

34She acknowledged that following the hearing before Arbitrator Newman, upon receipt of a copy of the decision issued on August 11, 2011, by email from the respondent union shortly thereafter, she did not attend a meeting arranged by the union to discuss the decision or next steps.

35This is not consistent with her stated position that she believed the union now either had carriage of or “were assisting with” her human rights litigation. In my view, if that was her position, she would have attended the meeting to provide the union with instructions on how she wished to proceed.

36In deciding whether it would be fair, just and expeditious to extend the time limit in this case, I must consider both the time limit in Rule 14.4 in the context of the overall scheme of the Code and Rules, as well as the reasons for the applicant’s request to extend it. In my view, the 60 day limit represents an attempt by the Tribunal to incorporate the values of fairness, justice and expeditiousness into this step of the proceedings and to balance those factors by acknowledging that parties will need a reasonable, but finite, amount of time to make a decision about reactivation. A request to extend the timeline must, therefore, be supported by some explanation.

37Extending the timeline would certainly not be expeditious in these circumstances given the length of time the applicant waited beyond the timeline afforded her under the Rules to file her request for reactivation.

38It would also, in my view, not be fair or just. The applicant has not given me any reason that stands up to scrutiny for the lengthy delay. Her original explanation for the delay and the basis upon which she sought to have the time line extended was not borne out by the evidence. In my view, given that she has not provided me with any explanation, there is nothing before me to warrant an inquiry into whether it is fair and just in these circumstances to extend the time limit for reactivation.

39Consequently, I find that it would not be appropriate to exercise my discretion to relieve against the application of the timeline set out in Rule 14.4 of the Tribunal’s Rules in the circumstances of the present case. The Request to re-activate the Application is dismissed, and the Application is therefore dismissed.

Dated at Toronto, this 4th day of December, 2013.

“Signed by”

Jay Sengupta

Vice-chair

CORRECTION

The decision released on December 4, 2013 incorrectly substituted the word “reconsideration” for the word “reactivation” in paragraph 37. The error is corrected.