Verreault v. Ontario (Community and Social Services), 2015 HRTO 1394

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda Verreault

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services

Respondent

RECONSIDERATION DECISION

Adjudicator: Brian Cook

Date: October 20, 2015

Citation: 2015 HRTO 1394

Indexed as: Verreault v. Ontario (Community and Social Services)

WRITTEN SUBMISSIONS

Linda Verreault, Applicant

The applicant on her own behalf, and Mitchell Rowe, Counsel

1The applicant has filed a Request for Reconsideration of the Tribunal’s Decision, 2015 HRTO 836. That Decision found that the Application had not been filed in accordance with section 34 of the Code which provides:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

2The Decision found that the alleged discrimination related to events in the period October to December 2013. The Application was filed on March 2, 2015 so it was not filed within the one year period referred to in section 34. The applicant submitted that there was a good faith explanation for the delay which was that she was waiting for the conclusion of a grievance proceeding and then had health problems.

3The Decision noted that the Tribunal has consistently found that waiting for the conclusion of another proceeding does not in itself provide a good faith explanation for delay under section 34. The Decision stated that a while a Code-related explanation, including disability, may provide a good faith explanation for delay, the Tribunal will normally expect medical evidence to show that the condition prevented the applicant from filing the Application within one year of the alleged events and such information was not provided in this case.

4In the applicant’s Request for Re-consideration, she submits that she relied on information she received from the Human Rights Legal Support Centre (“HRLSC”). Based on that information, she says she understood that she should wait for the grievance proceeding to conclude before filing the Application. She requested and received a copy of the intake notes from the HRLSC which she has provided in support of the Request for Reconsideration.

5The notes from the HRLSC indicate that the applicant first called on December 19, 2013. At that time, the discussion was mostly about the grievance. She was advised that if she filed an Application with this Tribunal and also had a grievance underway, the Application might be deferred. No discussion of a time limit was documented in the notes.

6The applicant called back on January 7, 2014, asking about the effect of an upcoming meeting at work. She was advised to find out what the meeting was about and to call back. The applicant called back and there was further discussion about filing an Application while there was also a grievance underway. The applicant called again on January 24, 2014. The applicant was told about section 45.1 of the Code which provides that an Application may be dismissed if another proceeding has appropriately dealt with the substance of the Application. There was no specific information recorded about a time limit.

7The applicant called again on April 22, 2015, approximately fifteen months later. By that time, the applicant had filed the Application and the Tribunal had issued a Notice of Intent to Dismiss because of the delay. The applicant called the HRLSC to get advice about what to do. The applicant was noted to be distraught. The HRLSC staff made several follow-up calls to try to schedule a meeting. On May 11, 2015, the applicant advised that she had retained a lawyer.

8The applicant called the HRLSC again on June 30, 2015, to complain that the Centre had advised her earlier that the deadline for filing the Application was February 28, 2014 (this may be a typographical error as it appears that the applicant understood that the deadline was February 2015). She was told that there was no record that she was given such advice.

9In the Request for Reconsideration, the applicant submits that she was misled by the HRLSC and that it is unfair that her Application has been dismissed after she relied on this advice. The Request was filed on the applicant’s behalf by Mitchell Rowe, the applicant’s counsel. He indicates that the information from the HRLSC is new evidence not previously available which provides a basis to reconsider.

Conclusions

10Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

11The Tribunal has issued Rules governing such requests. Rule 26 states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

12The Tribunal’s Practice Direction on Reconsideration states:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

13The HRLSC’s intake notes indicate that the applicant has submitted and Application but do not indicate that the applicant was given any advice concerning the time limit for filing in her original calls to the Centre. They do indicate that there was discussion about the effects of filing an Application when there was an ongoing grievance proceeding and that the Application could be deferred until the grievance was resolved or possibly dismissed if the grievance had appropriately dealt with the substance of the Application.

14The applicant submits that she followed this advice and filed her Application after the grievance proceeding was concluded. However, it appears that the grievance proceeding had concluded by February 2014. The applicant then had another meeting with the employer in September 2014. As noted in the Decision, if the Application had been filed at that time, it would have been filed in time.

15The applicant appears to have understood from the HRLSC that she had one year after the grievance proceeding was concluded and that she therefore had until February 2015 to file the Application, which was filed on March 2, 2015.

16There is no evidence to support the applicant’s contention that she was told that she had until February 2015 to file an Application. The notes from the HRLSC do not indicate that the applicant was given any specific advice about a time limit in her calls to the Centre in December 2013 and January 2014. She then did not contact the Centre again until April 2015, by which time the section 34 deadline had passed.

17It is of course unfortunate if the applicant thought that she had until February 2015 to file an Application. However, I must conclude that there is no evidence to support the suggestion that she was given advice to this effect by the HRLSC and I am unable to find that the delay in filing the Application was due to incorrect legal advice. I must conclude that the fact that the applicant had a misunderstanding of when the deadline was does not provide a good faith explanation for the delay in filing the Application and that the information submitted by the applicant does not provide a reason for re-opening the Decision. The applicant’s Request for Reconsideration must therefore be denied.

DECISION

18The Request for Reconsideration is denied.