HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mary Lou Groen
Applicant
-and-
Windsor-Essex Children’s Aid Society
Respondent
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Groen v. Windsor-Essex Children’s Aid Society
APPEARANCES
Mary Lou Groen, Applicant
Christine Lundy, Representative
Windsor-Essex Children’s Aid Society, Respondent
Jack Sullens, 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 Groen v. Windsor-Essex Children’s Aid Society, 2014 HRTO 1439, the Tribunal deferred this Application pending a decision of an Appeals Resolution Officer (“ARO”) of the Workplace Safety and Insurance Board (“WSIB”) regarding her claim to the WSIB, or of the applicant’s decision not to pursue such an appeal. The Tribunal also stated that the applicant could request reactivation of the Application if she believes the WSIB process has become unduly delayed. The Tribunal directed that such a request must include the status of the WSIB process and the reasons why the applicant believes that there has been undue delay.
Applicant’s Request
3The applicant filed a Request for an Order During Proceedings on December 4, 2014, seeking an order reactivating the Application. The applicant submitted that her objection to the WSIB’s decision regarding her claim has only recently been referred to the Appeals Services Division and an Appeals Readiness Form was sent to the applicant’s representative five months after the Intent to Object was submitted. The applicant submitted that an ARO has not been appointed to hear the appeal and the form of the hearing has not been determined. The applicant submitted that she believes that it will take several months for an ARO to be appointed and that it will be months after that before a hearing is held and yet more time for a decision to be rendered. The applicant submitted that it is much more likely that the Application before the Tribunal will be concluded before the claim before the WSIB is concluded if the Application is reactivated expeditiously.
4The applicant submitted that the thought of the time required before the Application can be reactivated causes her stress and anxiety, which aggravates her psychological condition. In that regard, the applicant submitted a letter from her psychiatrist, Dr. Shenava, to the applicant’s representative. Dr. Shenava confirmed that the applicant has been diagnosed with Major Depressive Disorder and Chronic Pain Syndrome. Dr. Shenava stated that the applicant’s dismissal from employment with the respondent caused immense stress in her life. Dr. Shenava also stated that the applicant’s daughter has also experienced significant psychological distress. Dr. Shenava requested that the Tribunal expedite the hearing of the Applicant’s Application because it will be helpful and therapeutic to her. The applicant submitted that the Tribunal should consider reactivating this Application because continued deferral “could well produce extremely undesirable and damaging consequences for both the applicant and her daughter”.
5The applicant submitted, however, that it is not seeking to expedite the Application, pursuant to Rule 21 of the Tribunal’s Rules of Procedure.
Respondent’s Response
6The respondent filed a Response to a Request for an Order During Proceedings on December 15, 2014, opposing the request to reactivate. The respondent submitted that the applicant chose to initiate an appeal of the WSIB’s decision regarding her claim and that appeal has not been exhausted. Consequently, there is no basis for reactivating this Application.
7The respondent submitted that the applicant’s argument regarding her psychological condition is an attempt to re-litigate the issue of deferral, which the Tribunal has generally discouraged.
8The respondent submitted that the applicant has not provided sufficient evidence that the WSIB proceeding has become unduly delayed. In that regard, the respondent submitted that the applicant has provided no evidence other than her representative’s observations and that there is no suggestion that the applicant has inquired of the WSIB about its appeal timeline. The respondent submitted that the applicant’s submissions indicated that the WSIB process has moved at a reasonable pace and that the applicant has an obligation to move the matter forward. The respondent submitted that there is no basis for the applicant’s submission that the Tribunal’s process would conclude before the WSIB matter is completed.
Analysis and Decision
9The request to reactivate the Application is denied for the following reasons.
10The applicant has not established that the WSIB process has been unduly delayed. The applicant chose to pursue an appeal of the WSIB’s decision and this appeal, like all legal processes, takes time. The Tribunal has said that the mere fact that a legal process may be lengthy is not sufficient reason for reactivating an application. See Groves v. Ontario (Community Safety and Correctional Services), 2011 HRTO 1245 and Caissie v. Reko Automation and Machine Tool, 2013 HRTO 332. In my view, an applicant seeking to reactivate an applicant because of “undue delay” must establish something more than the fact that the other proceeding is lengthy, in the normal course. Rather, an applicant must show that the other proceeding has been delayed beyond the normal expectations or requirements of that process or proceeding. The other proceeding in this matter is the appeal of a decision in the applicant’s WSIB claim. The applicant’s submissions are impressionistic and speculative and there is no evidence that the length of the applicant’s appeal will go beyond the expectations or requirements for that process. In these circumstances, I am not at this point prepared to find that the WSIB matter has become unduly delayed.
11The applicant’s submission to the effect that failure to reactivate the Application “could well produce extremely undesirable and damaging consequences for both the applicant and her daughter” is not supported by. Dr. Shenava’s letter. First, Dr. Shenava did not state that the applicant’s daughter is suffering distress because of the termination of the applicant’s employment with the respondent or because of anything to do with this Application. Second, Dr. Shenava also did not state that continued deferral could cause harm to either the applicant or her daughter. Rather, she stated that it will be helpful and therapeutic if the Application can be heard soon by the Tribunal. This is consistent with the applicant’s position that expedited proceedings are not required, as one might expect if expedience was truly required to safeguard the applicant’s health. Third, in raising the issue of the applicant’s health for the first time it appears that the applicant is also trying to reargue the issue of deferral.
12The request to reactivate the Application is dismissed.
13I am not seized.
Dated at Toronto, this 29th day of December, 2014.
“Signed by”
Douglas Sanderson
Vice-chair