Ekatrini Allagas v. Plato Adult Education Centre and Karen Sanchez, 2014 HRTO 1147

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ekatrini Allagas

Applicant

-and-

Plato Adult Education Centre and Karen Sanchez

Respondent

DECISION

Adjudicator: David Muir

Date: July 31, 2014

Citation: 2014 HRTO 1147

Indexed as: Allagas v. Plato Adult Education Centre

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended.

2The Application had been deferred to another proceeding in Interim Decision 2013 HRTO 775 issued on May, 9 2013. On April 15, 2014 the Tribunal wrote to the parties directing that the applicant advise it of the status of the other proceeding within 30 days. On May 1, 2014 the applicant advised that the other proceeding had resolved. The applicant subsequently provided documentation which indicated that the other proceeding had resolved in July 2013. The applicant filed a Request to Reactivate the Application on May 2, 2014

3On June 3, 2014 the Tribunal wrote to the parties directing that they each deliver and file submissions on the delay in filing the Request to reactivate. It at first appeared that the applicant had not responded to this direction and the Application was dismissed as abandoned In Decision 2014 HRTO 1066 issued on July 21, 2014.

4The applicant subsequently wrote the Tribunal to advise that she had provided her submissions in response on or about June 10, 2014 in compliance with the Tribunal’s direction. Consequently 2014 HRTO 1066 was reconsidered and rescinded in 2014 HRTO 1079.

The Delay Issue

5As indicated above this Application was deferred pending the conclusion of another legal proceeding in 2013 HRTO 775 issued on May, 9 2013. Nothing was heard from the applicant until April 2014 when in accordance with Tribunal practice the applicant was directed to advise of the status of the other proceeding and whether or not the applicant intended to proceed further with the Application.

6The applicant responded to advise that the other proceeding concluded on July 3, 2013 with a full and final settlement of her claim of pregnancy related reprisal under the Employment Standards Act, 2000. The applicant provides no explanation for the lengthy delay in making her Request for reactivation.

7The respondents oppose the Request.

8In my view it would not be appropriate to allow this Request in all of the circumstances.

9Rule 14.4 of the Tribunal’s Rules of Procedure provides as follows:

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.

10The applicant’s ESA complaint concluded on July 3, 2013 as indicated. To comply with Rule 14.4, the applicant should have filed her Request in early September 2013. In fact the applicant took no steps at all until prompted by the Tribunal’s correspondence dated April 15, 2014 which lead to the filing of this Request on May 2, 2014.

11Rule A4.2 provides the Tribunal with the discretion to vary the time limits set out in its 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 if there was “good reason” to relieve against the time limits, namely whether the delay in was incurred in good faith and whether any substantial prejudice would result if the time limit was extended. These factors are the same as those considered whether to exercise discretion deal with an otherwise untimely application under section 34(2) of the Code.

12The applicant offers no explanation for the delay except to say that she was not sure how the full and final settlement of the ESA claim might impact her Application. I note that in 2012 HRTO 775 the Tribunal advised the parties at para 13 :

The Tribunal orders the deferral of the Application pending the conclusion of the ESA process. Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

13I am not satisfied that the applicant has established a good faith explanation for the extensive delay in bringing her Request in this Case. I note that in cases where the Tribunal has considered whether a delay 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. See, for example, Lutz v. Toronto, 2009 HRTO 1137. I find that similarly, a claim of being ignorant of whether or not she could proceed with her Application in light of the ESA settlment also is not a reasonable explanation for a failure to act in a timely basis. I appreciate given the settlement that the applicant might have wondered what effect that might have on this Application however there is no indication that she took any steps to answer those questions.

14In my view there is no basis to conclude that this delay was incurred in good faith and accordingly the Application must be dismissed. Having come to this conclusion there is no need to consider whether any party would be prejudiced by the delay.