Reddick v. Best Buy Canada Ltd., 2014 HRTO 902

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Natalie Reddick

Applicant

-and-

Best Buy Canada Ltd.

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: June 18, 2014

Citation: 2014 HRTO 902

Indexed as: Reddick v. Best Buy Canada Ltd.

APPEARANCES

Natalie Reddick, Applicant

Self-represented

Best Buy Canada Ltd., Respondent

Daniel Mayer, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of reprisal, colour and sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2A preliminary hearing was scheduled in this matter by Case Assessment Direction, dated March 13, 2014, to address:

a. Whether the request to reactivate the Application should be denied because the request was filed more than 60 days after the conclusion of the employment standards proceeding; and

b. Whether the Application should be dismissed under section 45.1 of the Code or because there is no reasonable prospect that the Application could succeed.

3The preliminary hearing took place by teleconference call on June 17, 2014 and both parties made oral submissions, in addition to which the respondent provided written submissions.

background

4This Application was deferred by the Tribunal on consent of the parties on June 20, 2013 pending the outcome of a claim made by the applicant under the Employment Standards Act, 2000, S.O. c. 41, as amended (“ESA”).

5The Registrar’s letter of June 20, 2013 directed the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which outline the process by which a party may request the Tribunal to reactivate an Application after the conclusion of another proceeding. Rule 14.4 states that where an Application has been deferred pending the outcome of another legal proceeding, a request to reactivate must be filed no later than 60 days after the other legal proceeding has concluded.

6On October 24, 2013, an Employment Standards Officer issued a decision in the applicant’s ESA claim. The decision determined that there had been no contravention of the ESA in that her employment was not terminated because she was pregnant.

7The applicant did not file a Request for an Order During Proceedings (Form 10) to reactivate her Application by December 23, 2013, the sixty day limit for doing so. She filed her Form 10 to reactivate on February 5, 2014.

8On March 13, 2014, the Tribunal issued the Case Assessment Direction, directing the preliminary hearing. The parties were advised that they were to provide to each other and to the Tribunal any documents or cases upon which they intended to rely 14 days prior to the hearing. The applicant did not file anything further. The respondent filed written submissions, dated June 2, 2014.

THE HEARING

9I heard oral submissions from both parties with respect to the timeliness of the request to reactivate and the issue of whether the Application should be dismissed under section 45.1 of the Code or because there is no reasonable prospect that the Application could succeed.

The Issue of Delay

10The applicant submits that she did not file her request to reactivate her Application within the required 60 day time limit because:

a. she was not certain if she could move forward with the hearing after the ESA proceeding concluded until she spoke with an employment lawyer who advised her she should pursue the claim;

b. she had a death in the family on May 19, 2014 and was not paying attention to the limitation period and did not realize the time had run out; and

c. she did not know she only had a certain amount of time to reactivate her Application.

11The respondent submits:

a. that the Tribunal’s jurisprudence clearly states that there must be a reason why the request to reactivate was late that stands up to scrutiny;

b. that the Registrar’s letter of June 20, 2013 that deferred the Application advised her of the deadlines for requesting reactivation; and

c. that the ESA decision was rendered well before the death in the applicant’s family.

DECISION

12Rule 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.

13The applicant’s ESA complaint concluded on October 24, 2013 with the issuing of the decision. To comply with Rule 14.4, the applicant should have filed her Request to reactivate the Application by December 23, 2013. She did not file her Request until February 5, 2014.

14Rule 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 meeting the time limits 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.

15The applicant’s submissions that she was unaware of the 60 day requirement for filing a request to reactivate and that she did not know whether she could proceed with her Application after the conclusion of the ESA claim are not, in my view, good reasons to relieve against the time limit.

16In cases where the Tribunal has considered whether a delay in the filing of an application 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 determination also is not a reasonable explanation for a failure to act on a timely basis.

17In addition, the Tribunal included in the Registrar’s letter reference to the Tribunal’s Rules for reactivating an application. Given these circumstances the applicant’s submission that she did not know the time limit to reactivate her case is not a good reason to allow her Application to now proceed.

18The applicant’s submission that the death in her family was a reason for not reactivating her Application in time also is not a reason to relieve against the time limit as this very difficult event occurred well after the ESA decision was made and also after the request for reactivation should have been made.

19Considering the delay and the absence of a good reason provided by the applicant for the delay it is my view that it would not be appropriate to waive or vary the application of the timeline set out in Rule 14.4 of the Tribunal’s Rules.

20Given my finding with respect to the untimeliness of the applicant’s request to reactivate the Application, I need not deal with the further issues of whether the Application should be dismissed pursuant to section 45.1 of the Code on the basis that the substance of the Application had already been appropriately dealt with by the ESA decision and whether there is no reasonable prospect that the Application could succeed.

21The Application is dismissed.