Boltinsky v. Jewish Vocational Services Toronto, 2014 HRTO 1770

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Diana Boltinsky

Applicant

-and-

Jewish Vocational Services Toronto

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: December 10, 2014

Citation: 2014 HRTO 1770

Indexed as: Boltinsky v. Jewish Vocational Services Toronto

WRITTEN SUBMISSIONS

Diana Boltinsky, Applicant

Self-represented

Jewish Vocational Service Toronto, Respondent

Steven Wilson, Counsel

1This is an Application filed 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.

2In Interim Decision 2012 HRTO 1740, the Tribunal deferred this Application pending the resolution of grievance filed by the applicant’s trade union on the applicant’s behalf. On September 15, 2014, the applicant filed a Request for an Order During Proceedings seeking an order re-activating the Application, as the grievance proceeding had been completed by an award of a Board of Arbitration (the “Board”) dated March 26, 2014.

3On October 23, 2014, the respondent filed a Response to a Request for an Order in which it opposed the applicant’s request for re-activation. The respondent submitted that the request for reactivation should be dismissed for delay and because the Board of Arbitration dealt with the applicant’s allegations of violations of her Code rights.

4In a Case Assessment Direction dated November 4, 2014, the Tribunal directed as follows:

1. Within 7 days of the date of this Case Assessment Direction, the applicant shall file with the Tribunal and deliver to the respondent written submissions stating whether he wishes an opportunity to make oral submissions regarding whether the Tribunal should dismiss the request to reactivate the Application for delay or whether the Tribunal should dismiss the Application pursuant to sections 45.1 because another proceeding (i.e., the labour arbitration proceeding) has appropriately dealt with the substance of the Application;

2. If the applicant indicates that he wishes an opportunity to make oral submissions, then the Tribunal shall schedule a half-day preliminary teleconference hearing to address the issues described in paragraph 5(1) above;

3. If the applicant does not wish an opportunity to make oral submissions as described in paragraph 5(1), above, then the applicant shall file with the Tribunal and deliver to the respondent written submissions stating why his request to reactivate this Application should not be dismissed for delay (including his reasons for the delay) and why the Application should not be dismissed pursuant to section 45.1 of the Code, within 14 days of the date of this Case Assessment Direction. Within 14 days of receiving the applicants written submissions, the respondent shall file with the Tribunal and deliver to the applicant written submissions on the issues of delay and whether the Application should be dismissed pursuant to section 45.1 of the Code.

5In the same Case Assessment Direction, the Tribunal advised that it would decide the applicant’s request to reactivate based on the materials on file should the applicant not indicate whether she wishes to make oral submissions or provide written submissions, as directed. As of the dated of this Decision, the applicant has neither indicated she wishes to make oral submissions nor made written submissions on the issues of delay or whether the Application should be dismissed pursuant to section 45.1. Consequently, the Tribunal shall decide the applicant’s request based on the material filed to date.

Analysis and decision

6Rule 14.4 states 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.

7The Tribunal has stated that the principles to apply in extending the time limit for requesting reactivation should be similar to those applied regarding the time limit for filing Applications under section 34 of the Code. For example in Marc-Ali v. Graham, 2012 HRTO 502, the Tribunal stated as follows at paragraphs 19-20:

The delay in filing the reactivation Request is approximately two and a half months. 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.

8The grievance proceeding to which this Application was deferred was completed on March 26, 2014 with the Board’s decision. The applicant filed her request to reactivate this Application on September 15, 2014, over five months later. The applicant provided no explanation for this delay. In these circumstances, I cannot find that there is a good faith explanation for the applicant’s delay in filing the reactivation request.

9The request to reactivate is denied and the Application is dismissed.