Dacosta v. ORLICK Industries Limited, 2014 HRTO 1738

Human Rights Tribunal of Ontario

B E T W E E N:

Ana Dacosta

Applicant

-and-

ORLICK Industries Limited

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: December 2, 2014

Citation: 2014 HRTO 1738

Indexed as: Dacosta v. ORLICK Industries Limited

WRITTEN SUBMISSIONS

Ana Dacosta, Applicant

Angelo Procopio, Representative

Orlick Industries Limited, Respondent

Patricia G. Murray, Counsel

Introduction

1This Application was filed on November 7, 2012 under s. 34 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 and sex.

background

2The Application was deferred on March 4, 2013 (2013 HRTO 365) because of an outstanding Workplace Safety and Insurance Board (“WSIB”) proceeding. It was reactivated on May 30, 2013 (2013 HRTO 955).

3During a November 12, 2013 preliminary hearing to determine if the applicant’s allegations were untimely or had been dealt with in the WSIB proceeding pursuant to s. 45.1 of the Code, the applicant again requested deferral on the basis that she had appealed the WSIB decision to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). Relying on that submission, I deferred the Application again on January 23, 2014 (2014 HRTO 103).

request to reactivate

4On October 21, 2014, the Tribunal wrote to the applicant requesting an update on the status of the WSIAT proceeding.

5By letter, dated November 3, 2014, the applicant advised the WSIAT proceeding was final, enclosed a copy of the April 24, 2014 WSIAT decision and asked that the Application be reactivated.

6The respondent filed written submissions opposing reactivation because the request was out of time and there was no good faith reason for the delay. In addition, it submitted the applicant’s letter requesting reactivation was not sufficient given Rule 19 of the Tribunal’s Rules.

7The Tribunal issued a November 14, 2014 Case Assessment Direction (“CAD”) that stated the request to reactivate was out of time, and drew the applicant’s attention to the respondent’s submission that the applicant did not provide an explanation for her delay in the reactivation request and, therefore, the delay was not incurred in good faith. The Tribunal directed the applicant, by no later than November 21, 2014, to provide any submissions with respect to the delay.

8The Tribunal advised if the applicant failed to file submissions, the Tribunal would consider the reactivation request based on the material filed to date. The applicant did not file any further submissions.

analysis and decision

9Rule 14.4 of the Tribunal’s Rules of Procedure states that a request to reactivate a deferred application must be made no later than 60 days after the conclusion of the other proceeding.

10The Tribunal has 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 and 1.7).

11In Marc-Ali v. Graham, 2012 HRTO 502, the Tribunal discussed on what basis the time limit for reactivating a deferred Application might be extended:

The Rules require that a reactivation request be filed within 60 days of the conclusion of the other proceeding. The 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”), at para. 6, the Tribunal stated that there “must be a good reason” to waive the time limits set out in the Rules. In addition, the length of the delay may be a factor in determining the appropriateness of extending the time limit. See, for example, Vonella v. Blake Jarrett and Company, 2010 HRTO 2158 (“Vonella”), where the delay was only two days.

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.

12In this case, assuming the applicant’s letter was sufficient to request reactivation, the applicant filed her request on November 3, 2014, more than four months after the 60 days to request reactivation had passed.

13Despite the applicant being advised of Rule 14.4 more than once because her Application was deferred more than once, she failed to request reactivation in a timely manner. Despite being given an opportunity to provide any good faith reasons for the delay, she provided none.

14Considering the delay and the absence of the applicant providing any good faith explanation for the delay, in my view it is not appropriate to waive or vary the application of the timeline set out in Rule 14.4 of the Tribunal’s Rules.

15Given my finding with respect to the untimeliness of the applicant’s request to reactivate the Application, I need not deal with whether there is any substantial prejudice to the respondent.

order

16The Application is dismissed.