Faizool Shaffick v. The Oakville Club Ltd., 2014 HRTO 1424

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Faizool Shaffick

Applicant

-and-

The Oakville Club Ltd., Larry Montpetit and Bram Weitzman

Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: September 24, 2014 Citation: 2014 HRTO 1424 Indexed as: Shaffick v. The Oakville Club Ltd.

WRITTEN SUBMISSIONS

Faizool Shaffick, Applicant Self-represented

The Oakville Club Ltd., Larry Montpetit and Bram Weitzman, Respondents Lior Samfiru, Counsel

1This is a transitional Application dated April 27, 2009 and filed under s. 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.

2In brief, the applicant sustained a workplace injury in April 2006 and continued working for the respondent for over a year on modified duties. The applicant states that sometime in the spring 2007, he was assigned work duties beyond his restrictions which he refused to perform, resulting in him being sent home in early June 2007. The respondents take the position that the applicant had been cleared to resume full duties by the Workplace Safety Insurance Board (“WSIB”).

3In addition to filing his transitional Application, the applicant also had initiated proceedings before the WSIB. By Interim Decision dated August 25, 2011 (2011 HRTO 1592), this Application was deferred pending the conclusion of the WSIB proceedings.

4The applicant’s WSIB claim ultimately proceeded to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”), which issued its decision on February 20, 2014. In its decision, WSIAT found that the employer had not offered suitable modified work to the applicant, such that he was entitled to loss of earnings (“LOE”) benefits from June 3, 2007 on the basis that suitable modified work was not provided.

5In its Interim Decision dated August 25, 2011, the applicant had been advised that, pursuant to Rule 16.5 of the Tribunal’s Rules of Procedure for Transitional Applications, if he wished to proceed with his transitional Application following a final decision by WSIAT, a request to proceed should be made by serving and filing a Request for Order during Proceedings (Form TR-4) no later than 60 days after the conclusion of the WSIAT proceeding. The applicant was reminded of the Rule governing the process for seeking to re-activate his transitional Application in a series of correspondence from the Tribunal seeking updates on the status of the WSIAT proceeding.

6By letter dated May 26, 2014, the applicant’s then representative sent a letter to the Tribunal requesting that the transitional Application be reinstated on the basis that the WSIAT proceeding was complete. The WSIAT decision was attached to this correspondence.

7On May 30, 2014, the Tribunal responded to this correspondence by reminding the applicant that the 60 day period under the Rules for seeking to re-activate his transitional Application had expired on April 21, 2014, and noting that no explanation had been provided in the applicant’s material regarding the delay in filing this request. The applicant was directed to file submissions within 14 calendar days regarding the delay in filing his request and why his request should be granted, and was referred to Tribunal caselaw on this point. The applicant requested and was granted an extension to file these submissions.

8On June 26, 2014, the applicant sent e-mail correspondence to the Tribunal setting out what he says had occurred following receipt of the WSIAT decision. One of the things directed by the WSIAT decision was for the WSIB to conduct a non-economic loss (“NEL”) assessment for a permanent impairment to his lower back. The WSIB decision on the NEL assessment was issued on April 10, 2014. The applicant states that upon receipt of the WSIB decision dated April 10, 2014, he called his representative’s office and advised a staff member to tell his representative about the WSIAT decision. The applicant states that the staff member said she would do so, and have the representative call the applicant back. The applicant states that weeks went by with no return phone call from his representative.

9The applicant states that at this point, he called and spoke to the Tribunal’s Assistant Registrar responsible for transitional Applications, and was told to fax the WSIAT decision to the Tribunal. The applicant states that he told the Assistant Registrar that he would have his representative do that. The applicant states that he then made further efforts to contact his representative, and after several attempts got a return phone call. The applicant states that he met with his representative on May 19, 2014, which resulted in the letter from the applicant’s representative dated May 26, 2014.

10The respondents were invited to file submissions in response to the applicant’s re-activation request, which they opposed on the basis of the applicant’s failure to meet the 60 day timeline under the Rules.

11The respondents note that the applicant’s representative did not file a Request for Order during Proceedings to request re-activation, as required by the Rules. In this regard, I note that Rule 3.5 states that a technical defect or irregularity is not a breach of the Rules and Rule 3.6 gives me the power to relieve against a failure to comply with the Rules. In my view, while not made using the correct form, the applicant substantially complied with the substance of Rule 16.4 by making his request by correspondence rather than using the proper form, which I regard as a technical defect or irregularity.

12With regard to the appropriate test to apply when dealing with a failure to comply with a timeline set out in the Tribunal’s Rules of Procedure, I agree with and adopt the approach taken in the Tribunal’s more recent jurisprudence which rejected the notion that this Tribunal should apply the same approach and principles as it applies when considering delay in filing an Application under s. 34(2) of the Code: see Hudson v. Kingston (City), 2013 HRTO 2006; Singh v. Rainbow Circle Co-operative Inc., 2014 HRTO 528. As stated in these decisions:

In 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. 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.

13Accordingly, the questions for me to consider are whether the applicant has provided some explanation for the delay, and whether it would be fair, just and expeditious to extend the time limit.

14The applicant has provided some explanation for the delay. He did try to contact his former representative on or about April 10, 2014 regarding the WSIAT decision, which was within the 60 day period. When that did not result in a return phone call, he did make the effort to contact the Tribunal, albeit by that time he was outside the 60 day period. While I take the respondents’ point that the applicant should have followed the Tribunal’s direction to file the WSIAT decision after speaking with the Assistant Registrar, it is my view that, as he was represented at the time, it was not unreasonable for him to make a further effort to involve his representative in taking the next appropriate step. This resulted in the request for re-activation being made on May 26, 2014, which was 35 days after the 60 day timeline under the Rules.

15In my view, it would not be fair or just to refuse to re-activate the Application on the basis of what is a relatively short delay. While the applicant’s former representative should have been more diligent in responding to the applicant’s phone calls and filing the re-activation request, this is not a case like Mullings v. Global Alliance Worldwide Chauffeured Services Ltd., 2012 HRTO 1628, where there was a delay of over a year in filing the re-activation request and it was found that the applicant was aware of and ought to have taken steps to correct his representative’s deficiencies at a much earlier time. While the short delay by the applicant in the instant case certainly does not contribute to the value of expeditiousness, I find that the material before me does not support that the respondents have suffered any prejudice by the delay. While respondent counsel notes that both personal respondents have now left the employ of the corporate respondent, there is no indication that this occurred during the course of the 35 day delay in making the re-activation request.

16Accordingly, for the foregoing reasons, I hereby allow the applicant’s request and re-activate his transitional Application. The Tribunal will schedule a one day in-person hearing to address the following issues:

a. Whether the transitional Application should be dismissed pursuant to s. 45.1 of the Code as having already been appropriately dealt with as a result of the WSIAT decision. In this regard, the parties may wish to consider the Tribunal’s decision in Hansen v. Workplace Safety and Insurance Board, 2012 HRTO 608;

b. If not, what effect should be given to the findings made by the WSIAT and whether and to what extent any further evidence should be heard from the parties in the context of the human rights proceeding; and

c. What remedies the applicant is seeking from this Tribunal in light of the WSIAT decision and any evidence he may have in support of the remedies sought. In this regard, if the applicant has received any decision from the WSIB regarding the retroactive payment of the LOE benefits awarded by WSIAT, he should serve and file this decision with the Tribunal.

ORDER

17For the foregoing reasons, the Tribunal hereby makes the following order:

a. The applicant’s request for re-activation of his transitional Application is granted;

b. The Tribunal will schedule a one day hearing to address the issues set out in para. 16 above; and

c. Within 14 calendar days of this Interim Decision, or within 14 calendar days of receipt of such WSIB decision if not already rendered, the applicant shall serve on respondent counsel and file with the Tribunal any decision from the WSIB regarding the retroactive payment of the LOE benefits awarded by WSIAT.