Dacosta v. Orlick Industries Ltd., 2013 HRTO 955

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ana Dacosta Applicant

-and-

Orlick Industries Ltd. Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: May 30, 2013 Citation: 2013 HRTO 955 Indexed as: Dacosta v. Orlick Industries Ltd.

WRITTEN SUBMISSIONS

Ana Dacosta, Applicant Wenona Horton, Representative

Orlick Industries Ltd., Respondent Patricia G. Murray, Counsel

Introduction

1This Interim Decision addresses the applicant’s request to reactivate her application.

2By Application filed on November 7, 2012, the applicant alleged that she was harassed and/or discriminated against because of disability in employment contrary to the Human Rights Code, R.S.O. c. H.19, as amended (the “Code”). Specifically, she claims that the respondent discriminated against her when it provided her with modified duties based on a 2009 return to work plan that did not take into account an injury she sustained in 2010. She also claims that the respondent discriminated against her when it terminated her employment in May 2012 on the basis that she was only performing 25% of her assigned duties. Finally, she alleges that the respondent failed to take action to prevent harassment by her co-workers which commenced in or around October 2009.

3The applicant noted in her Application that she had an appeal pending before the WSIB. She attached written submissions made on her behalf to a Workplace Safety and Insurance Board (“WSIB”) Appeals Resolutions Officer in October 2012.

4On January 11, 2013, the Tribunal issued a Notice of Intent to Defer consideration of the Application pending the conclusion of the WSIB proceeding and sought submissions from the parties on the issue. Each party filed submissions.

5By Interim Decision dated March 4, 2013, 2013 HRTO 365, the Tribunal deferred consideration of the Application pending the conclusion of the WSIB proceeding. The Tribunal noted that a proceeding at the WSIB generally will be considered complete when the WSIB has issued a final decision on the issues relevant to the issues in the Application. In most cases, this will mean a decision of a WSIB Appeals Resolution Officer. As a result, the Tribunal deferred consideration of this Application until the Appeals Resolution Officer issued a final decision in the WSIB proceeding The Interim Decision advised the parties that, under the Tribunal’s Rules of Procedure any request to reactivate the Application had to be made within 60 days of the conclusion of the other proceeding.

6On April 22, 2013, the applicant made a Request for Order During Proceeding (“Request”) in which she requested to reactivate the Application. She attached to the application the decision of the Appeals Resolution Officer in her case which is dated October 22, 2012 -- that is, approximately two weeks before she filed her Application.

7In its Response to the applicant’s Request, the respondent objects to the reactivation of the Application. The respondent submits that the Application should be dismissed as the applicant did not file her Request within the applicable time period. The respondent also noted that, if the Application were reactivated, it planned to raise issues as to the timeliness of certain allegations contained in the Application and the application of s. 45. 1 of the Code.

8In the absence of any asserted prejudice by the respondent, I find it appropriate in the circumstances of this case to allow the applicant’s Request to reactivate her Application. The applicant was self-represented at the time she filled out her Application form and her response to the Tribunal’s Notice of Intent to Defer. There appears to have been some confusion over the status of the Appeals Resolution Officer’s decision. If the Tribunal had been aware that the Appeals Resolution Officer had already issued a decision in her case, the Tribunal would not have deferred consideration of the Application. In the circumstances, I permit the applicant to reactivate her Application.

9If the respondent wishes to raise issues relating to the timeliness of all or part of the Application and/or the application of s. 45.1 of the Code, it must do so by filing a Request for Order During Proceedings within the time frame set out below.

ORDER

10The Tribunal orders as follows:

a. The Application is reactivated.

b. If the respondent wishes to request the dismissal of all or part of the Application due to untimeliness and/or the application of s. 45.1 of the Code, it shall do so by filing a Request for Order During Proceedings within 21 days of the date of this Interim Decision. If the respondent does file such a Request for Order During Proceedings, it shall not be required to file its Response to the Application until the Tribunal determines its Request.

c. If the respondent does not file a Request for Order During Proceedings seeking the dismissal of all or part of the Application within the time frame set out in paragraph (b) above, it shall file its Response to the Application within 45 days of the date of this Interim Decision.

11I am not seized of this matter.