Jennifer McLachlan v. Forensic Investigations of Canada, 2013 HRTO 506

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer McLachlan

Applicant

-and-

Forensic Investigations of Canada

Respondent

DECISION

Adjudicator: Eric Whist Date: March 26, 2012 Citation: 2013 HRTO 506 Indexed as: McLachlan v. Forensic Investigations of Canada

APPEARANCES

Jennifer McLachlan, Applicant Self-represented

Forensic Investigations of Canada, Respondent Andrew McCreary, Counsel

1This is an Application filed on January 11, 2011, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment because of sex, marital status, family status and reprisal.

BACKGROUND

2In Interim Decision 2011 HRTO 1225, the Tribunal ordered the Application deferred pending the outcome of a claim made by the applicant under the Employment Standards Act, 2000, S.O. c. 41, as amended (“ESA”). The Tribunal held that the applicant’s claim that the respondent breached the pregnancy, parental leave and anti-reprisal provisions of the ESA was sufficiently similar to the subject matter of the Application to warrant deferral of the Application.

3The Tribunal’s Interim Decision directed the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which outline the process by which a party may request the Tribunal to reactivate an Application after the conclusion of another proceeding. Rule 14.4 states that where an Application has been deferred pending the outcome of another legal proceeding, a request to reactivate must be filed no later than 60 days after the other legal proceeding has concluded.

4On June 23, 2011, an Employment Standards Officer (“ESO”) issued a decision in the applicant’s ESA claim. The decision determined that there had been no contravention of the ESA. The applicant did not appeal this decision to the Ontario Labour Relations Board thus concluding her proceeding under the ESA.

5The applicant did not file a Request for an Order During Proceedings (Form 10) to reactivate her Application by August 22, 2011, the sixty day limit for doing so.

6On April 24, 2012, the Tribunal sent the parties a letter in which it requested that the applicant update the Tribunal as to the status of her proceeding under the ESA. On April 30, 2012, the respondent wrote the Tribunal to advise it that the applicant’s ESA complaint had been decided on June 23, 2011, that the applicant had not appealed this decision within the required 60 days and consequently that the respondent was asking that the Tribunal dismiss the Application.

7Later on April 30, 2012, the applicant emailed the Tribunal to indicate that she did want to proceed with her Application.

8On June 12, 2012, the Tribunal sent a Registrar’s letter to the applicant stating, in part:

The applicant wrote to the HRTO on April 30, 2012 requesting to proceed with the Application. The HRTO contacted the applicant by telephone and requested that she file a Request an Order during Proceeding (Form 10). The HRTO has not received a Form 10. The applicant is required to file a Form 10 or a Request to Withdraw. (Form 9) if she does not want to continue with the Application within 30 days of the date of this letter. If the applicant fails to do so the HRTO may dismiss the Application as abandoned.

9On August 23, 2012, the Tribunal issued a Case Assessment Direction stating that the applicant had failed to file a Form 10 as directed in the Tribunal’s June 12, 2012 letter and that the applicant had until September 7, 2012, to file a Form 10 request or her Application may be dismissed as abandoned.

10On September 7, 2012, the applicant filed a Form 10 asking that her Application be re-activated. On September 20, 2012, the respondent filed a Response (Form 11) opposing the request to reactivate on the basis of delay.

11The Tribunal subsequently requested written submissions from the parties on the issue of whether the Application should be dismissed for delay and on the further issue of whether the Application should be dismissed pursuant to section 45.1 of the Code on the basis that the substance of the Application had already been appropriately dealt with by the ESO’s decision.

12On March 7, 2013, the Tribunal held a hearing by teleconference to give the parties the opportunity to make oral submissions on the issues of whether the Application should be dismissed for delay and/or pursuant to section 45.1 of the Code.

THE HEARING

13I heard submissions from the applicant and the respondent. I also had before me written submissions from the parties, as well as documents and case law submitted by the respondent.

The Issue of Delay

14The applicant submits that there are medical reasons for why she was unable to file her request to reactivate her Application within the required 60-day time limit and not until September 2012. She submits that she has had ongoing medical issues related to a serious back condition. She submits the seriousness of this condition can be measured by the fact that she now requires spinal cord surgery and that it is dangerous for her to drive because of the risk of injury and paralysis.

15The applicant referred to having to remain on a couch for five months, of being unable to feed herself, and of being unable to move given the condition of her back. The applicant submits that she was subject to considerable ongoing physical pain, that as a result she had to take intrusive medication and that she has had periods in which she has had difficulties remaining lucid. She referred to experiencing physical numbness. She referred to being fearful of the difficulties she had trying to understand what was physically happening to her. She submits that once she began to feel better - she estimated that this was in the summer of 2012 - she was able to file her Form 10 request to reactivate, as required.

16The applicant submits that she was not fully aware that she had to make a request in writing to reactivate her Application until April 2012, when the Tribunal wrote to her inquiring about the status of her claim under the ESA. She submits that she did email the Tribunal in April 2012 of her interest in continuing with her Application. She submits that she did not fully appreciate the need to file a formal document to reactivate her Application until she called the Tribunal and was told she needed to file a particular form (Form 10). The applicant submits that she promptly did this in September 2012.

17The respondent submits that while the applicant may have had medical issues, the applicant has not shown that she was incapacitated to the point that she was unable to file her request to reactivate her Application within the required 60-day period or on a more timely basis.

18The respondent questions whether the applicant was incapacitated as claimed. The respondent notes that the applicant was capable of filing a 44-page submission to the Tribunal on June 20, 2011 (in relation to the respondent’s original request to defer the Application), notwithstanding that the applicant claimed in her written submissions on the issue of delay that beginning in March 2011 she spent nine weeks on her couch unable to sit up, feed herself or even move.

19The respondent submits that the fact that the applicant was able to communicate with the Tribunal by email on April 30, 2012 also demonstrates that she had, contrary to the applicant’s assertions that she was incapacitated during this period, the capacity to communicate with the Tribunal and could have filed her Form 10 at this time.

20The respondent further submits that there was no reason the applicant could not have had someone else, such as a family member, file the Form 10 request if she physically was unable to do so herself.

21The respondent questions whether the applicant can rely on a lack of knowledge for not filing her request to reactivate on a more timely basis. The respondent submits that the Tribunal’s Interim Decision did direct the applicant’s attention to Rules 14.3 and 14.4 which outline the process by which a party may request to reactivate an application. The respondent submits that on April 24, 2012, the Tribunal again communicated these requirements when it wrote to the parties asking whether the applicant’s claim under the ESA was still ongoing. The respondent submits the applicant has not adequately explained the further delay in filing her Form 10 from April to September 2012 given the information she received from the Tribunal (and the respondent) in April and the Tribunal’s June 12, 2012 letter telling her of the need to file a Form 10 within 30 days.

22The respondent submits that it would be prejudiced if the Application was to proceed given that the events that gave rise to the Application commenced more than four years ago and two of the respondent’s four witnesses no longer work for the respondent.

DECISION

23Rule 14.4 of the Tribunal’s Rules of Procedure provides 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.

24The applicant’s ESA complaint concluded on June 23, 2011 with the issuing of the ESO’s decision. To comply with Rule 14.4, the applicant should have filed a Form 10 request to reactivate the Application by August 22, 2011. Instead the applicant did not file her Form 10 request to reactivate the Application until September 7, 2012, over 12 months later.

25The Tribunal has the discretion to vary time limits set out in its Rules “to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matter before it” (Rule 1.1). In Baker v. Kingston Hospital, 2009 HRTO 2079 (“Baker”), the Tribunal stated that there “must be a good reason” to waive the time limits set out in the Rules”. In Marc-Ali v. Graham, 2012 HRTO 502, the Tribunal specifically discussed on what basis the time limit for reactivating a deferred Application might be extended:

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.

26The applicant’s contention is that she was unable to meet the Tribunal’s requirement because of an ongoing debilitating medical condition, a condition that the applicant submitted continued until the summer of 2012 after which she was able to promptly file her request to reactivate. I do not find this argument persuasive. Even if I accept the applicant’s medical condition as described in her oral and written submissions - and I have no reason not to - I do not accept that this condition was of an ongoing and constant nature such that it rendered the applicant incapable of filing a request to reactivate within the required 60 days and for a further 12 months, as claimed.

27I find it significant that the most descriptive and detailed account given by the applicant of her medical condition was when she was reduced to lying on her couch, was unable to move and required extensive medication. The applicant indicates in her written submissions that this specifically began in March 2011 and continued for nine weeks. Yet it is either during this period or immediately afterwards that the applicant is capable of preparing and then filing an extremely detailed and lengthy (44 pages) written submission with the Tribunal. I do not see how if the applicant was able to produce this work after her she began to experience significant difficulties with her back, that she was incapable of filing a Form 10 request because of medical reasons anytime in the period June to August 2011 and then not until September 2012.

28I also agree with the respondent that the applicant could have always asked someone else to file the Form 10 on her behalf (with the applicant’s signature). The applicant’s argument that she did not want to ask her spouse to do this because he was involved in his own litigation with the respondent is not persuasive. The total of the information provided by the applicant on her Form 10 is her contact information, four lines of text, several marked boxes and her signature. I see no reason why any person, including the applicant’s spouse, could not have assisted her with the physical demands of this task, if asked.

29The applicant also submits that she was unaware of the 60-day requirement for filing a request to reactivate. In cases where the Tribunal has considered whether a delay in the filing of an application has been incurred in good faith under section 34(2) of the Code the Tribunal has found that ignorance of one’s rights under the Code does not, except in the most exceptional of cases, constitute a reasonable explanation for failing to meet the time limits for filing an Application, see for example, Lutz v. Toronto, 2009 HRTO 1137. I find that similarly, a claim of being ignorant of the requirement under the Tribunal’s Rules as to how to reactivate an Application is generally not a reasonable explanation for a failure to act on a timely basis. The fact is, the Tribunal’s practice is to include in an Interim Decision deferring an application reference to the Tribunal’s Rules for reactivating an application. In this case Interim Decision 2011 HRTO 1225 directed the applicant’s attention to Rules 14.3 and 14.4 indicating that these Rules outline the process by which a party may proceed with an Application after the conclusion of another process. The applicant was also reminded of these Rules in the Tribunal’s April 24, 2012 letter with no action being taken by the applicant to reactivate her Application at that time. Under these circumstances the applicant’s submission that she did not know to reactivate her case is not a good reason to allow her Application to now proceed.

30The applicant also submits that she did file her Form 10 in a timely fashion when she knew this was the documentation that was required of her in order to reactivate her Application. I do not find this persuasive. The applicant was explicitly told by the Tribunal in its letter of June 12, 2012 that she needed to file a Form 10. In spite of this information the applicant waited a further 87 days before requesting that her Application be reactivated.

31Considering the length of the delay and the absence of a good reason provided by the applicant for the delay it is my view that it would not be appropriate to waive or vary the application of the timeline set out in Rule 14.4 of the Tribunal’s Rules. The Application is therefore dismissed

32Given this decision, I do not need to consider the further issue of whether the Application should be dismissed pursuant to section 45.1 of the Code on the basis that the substance of the Application had already been appropriately dealt with by the ESA decision.

33Dated at Toronto, this 26th day of March, 2013.