HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Pedro Vanegas
Applicant
-and-
Liverton Hotels International Inc. o/a Metropolitan Hotel
Respondent
RECONSIDERATION DECISION
Adjudicator: Mark Hart
Indexed as: Vanegas v. Liverton Hotels International Inc.
1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2011 HRTO 715 dated April 12, 2011, which dismissed the Application.
2On October 14, 2014, the applicant filed a Request for Reconsideration of the Tribunal’s Decision.
3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), provides as follows:
45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.
(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.
4As the Decision at issue relates to a Transitional Application, the applicable Tribunal Rules are the Rules of Procedure for Transitional Applications. Under these Rules, Requests for Reconsideration are addressed under Rule 25. Rule 25.1 states that a party must request reconsideration of a final decision of the Tribunal within 30 days from the date of the decision. In the instant case, the applicant filed his Request for Reconsideration three and a half years from the date of the Decision, far beyond the 30 day period.
5Rule 25.5.1 provides that a Request for Reconsideration made more than 30 days following the Decision will not be granted unless the Tribunal determines that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. This language in Rule 25.5.1 mirrors the language set out in s. 34(2) of the Code, which sets out the test for when an Application should be allowed to continue when it is filed beyond the one year statutory time period. In my view, given that the same language is used in Rule 25.5.1, the principles that have been developed regarding the proper interpretation of what it means for delay to have been “incurred in good faith” under s. 34(2) of the Code apply equally to the interpretation of the identical language in Rule 25.5.1.
6This Tribunal has held that the onus is on an applicant to satisfy this Tribunal that delay was incurred in good faith. This requires that the applicant provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, this Tribunal held that an applicant is required to show something more than simply an absence of bad faith.
7While this Tribunal accepts that a delay may have been incurred in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that any such disability was so debilitating as to prevent an applicant from pursuing his or her legal rights: see, for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; Savage v. Toronto Transit Commission, 2010 HRTO 1360; Dionne v. Toronto (City), 2011 HRTO 317.
8In the instant case, the applicant seeks to justify the delay in filing his Request for Reconsideration on the basis that shortly after receiving the Tribunal’s Decision in April 2011, his physical and mental health deteriorated to the point that his two doctors asked him to stop dealing with his legal issues until his health conditions had stabilized enough for him to continue. In support of this submission, the applicant attached to his Request for Reconsideration a letter from a doctor dated May 7, 2011 which states in its entirety: “[The applicant] has a health condition regarding his mental and physical condition such that he is advised to have better health before pursuing legal options”.
9The applicant also has provided some notes from his family doctor of visits on October 9 and 14 and December 2, 2011 and January 23, 2012. These notes are largely illegible, but include reference to such things as increased anxiety, poor concentration, chronic fatigue, insomnia, panic attacks, and tension headaches. The applicant states that as of October 2011, he already had stopped dealing with his legal issues as a result of his doctors’ advice, but was still worried about his claims.
10The applicant states that recently, such issues have stabilized a little to the point where it is possible for him to start dealing with his legal issues again.
11As stated above, the test for whether delay was incurred in good faith in the context of a disability-related explanation for the delay, is whether any such disability was so debilitating as to prevent the applicant from pursuing his legal rights. The material submitted by the applicant is far from sufficient to meet this standard. Even on the basis of the medical notes submitted, there is nothing to indicate that the applicant’s health conditions were so debilitating that they prevented him from filing his Request for Reconsideration at an earlier time. All that is stated is that he was advised to have better health before pursuing legal options. More significantly, however, the most recent medical note provided dates from January 2012, which is about two years and nine months prior to the filing of the Request for Reconsideration. While the applicant asserts that his health issues “recently” have stabilized, there is no medical support at all to establish that during the entire period from January 2012 to October 2014, the applicant’s health conditions were so debilitating as to prevent him from filing the Request for Reconsideration.
12As a result, I find that the applicant has not established that his delay in filing the Request for Reconsideration was incurred in good faith within the meaning of Rule 25.5.1. Given this finding, I do not need to consider whether any substantial prejudice would be caused to the respondent.
13For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.
Dated at Toronto, this 11^th^ day of March, 2015.
“Signed by”
Mark Hart
Vice-chair