Ng v. Ontario (Government Services), 2013 HRTO 649

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Flora Ng

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Government Services

Respondent

DECISION

Adjudicator: Leslie Reaume

Date: April 18, 2013

Citation: 2013 HRTO 649

Indexed as: Ng v. Ontario (Government Services)

APPEARANCES

Flora Ng, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Government Services, Respondent

Cathy Phan, Counsel

Introduction

1The applicant filed this Application on February 7, 2011 alleging discrimination in employment on the basis of multiple grounds contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).

2On August 9, 2011, the Tribunal issued an Interim Decision, 2011 HRTO 1487, which ordered that the Application be deferred pending the completion of a proceeding before the Grievance Settlement Board (“GSB”) on the basis that there appeared to be complete overlap between the issues and allegations raised in the grievance and some of the matters raise in the Application.

3In the deferral decision, the Tribunal indicated that “once the decision of Arbitrator Mikus is released, it will be possible to determine what aspects of the Application were addressed in the GSB grievance process”. The Tribunal deferred the Application “pending the conclusion of the grievance process before the GSB” and directed the parties to Rules 14.3 and 14.4 which outlines the procedure by which an Application may be brought back on after the conclusion of the GSB hearing process. The Rules state:

14.3 Where a party wishes the Tribunal to proceed with an Application which has been deferred the request must be made in accordance with Rule 19.

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.

4On January 23, 2012, the GSB issued a Decision dismissing the applicant’s grievance. See Ontario Public Service Employee’s Union (Ng) v Ontario (Government Services), 2012 CanLII 6214 (ON GSB).

5On August 9, 2012, the applicant filed a Request for Order During Proceedings to reactivate her deferred Application. On August 15, 2012, the respondent filed a Response, which opposed the applicant’s Request on the basis that it was filed five months out of time.

6On September 18, 2012, the Tribunal issued a Case Assessment Direction (“CAD”) setting a teleconference for oral submissions on whether the Tribunal should reactivate the deferred Application. The CAD included this quote from Marc-Ali v. Graham, 2012 HRTO 502, at para. 20, where the Tribunal set out the principles that the Tribunal will consider when assessing a late Request to reactivate a deferred Application:

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…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.

7The parties participated in oral submissions on January 23, 2013. The applicant filed her Request to reactivate in response to a letter from the Tribunal dated July 11, 2012, requesting a status update on the GSB proceedings. The letter states:

The Applicant is required to advise the HRTO whether the other process is still ongoing and, if possible, when it is expected to be completed, within 30 days of the date of this letter. If the applicant fails to do so, the HRTO may dismiss the Application as abandoned.

The parties’ attention is directed to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the other proceeding.

8The applicant argued that she was unaware, before she received the status letter from the Tribunal, that there was a time limit for filing a Request to reactivate. This explanation does not establish a good faith reason for the delay since the applicant was specifically directed to the Rules and deadlines associated with reactivation in the deferral decision.

9The applicant also argued that she did not understand what the Tribunal meant by a “concluded” or “completed” process before the GSB. She argued that she was unaware that the release of the GSB decision brought her grievance process to a conclusion. I do not accept this explanation. In her Request to reactivate the applicant responds to the question “please describe the order requested in detail” with the following statement:

Re-activate HRTO File Number 2011-08028-I filed February 7, 2011 relating to employment discrimination. Arbitration was ongoing at the time and resulted in an Interim Decision of the Tribunal on August 9, 2011 to defer this application at the request of the respondent. At the time of the deferral a decision by the GSB arbitrator was pending.

10It appears that the applicant did not make note of the reactivation rules at the time that she was advised to do so and did not indicate an interest in pursuing this Application until the Tribunal asked for a status update. In the circumstances I find that the applicant is unable to establish a good faith explanation for the delay in filing her Request to reactivate the Application. It is unnecessary for me to consider the issue of prejudice to the respondents.

11Accordingly, the Application is dismissed.