Simopoulos v. Sprint Insight Inc., 2015 HRTO 303

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christopher Simopoulos

Applicant

-and-

Sprint Insight Inc.

Respondent

DECISION

Adjudicator: Brian Cook

Date: March 12, 2015

Citation: 2015 HRTO 303

Indexed as: Simopoulos v. Sprint Insight Inc.

APPEARANCES

Christopher Simopoulos, Applicant

Self-represented

Sprint Insight Inc., Respondent

Jessica Young, Counsel

INTRODUCTION

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application was filed on December 27, 2012. At that time, there was ongoing related adjudication of various issues at the Workplace Safety and Insurance Board (WSIB).

2In Interim Decision 2013 HRTO 1092, the Application was deferred pending a decision by a WSIB Appeals Resolution Officer. The Interim Decision advised the parties that a request to re-activate the Application must be made within 60 days of the decision of the Appeals Resolution Officer.

3The Appeals Resolution Officer issued his decision on December 16, 2013. To comply with the direction in the Interim Decision, the applicant should have asked to have the Application re-activated by approximately February 16, 2014. He did not ask for re-activation until August 5, 2014.

4A telephone conference call hearing was scheduled to deal with the issue of whether the Application should be re-activated, and also with the issue of whether the WSIB had appropriately dealt with the substance of the Application. The telephone conference call hearing was held on February 3, 2015.

Background

5The applicant was employed by the respondent in March 2011. He suffered a work-related injury to his leg and right elbow and subsequently reported left elbow pain that was diagnosed as a repetitive strain injury. There were numerous issues between the parties regarding the return to work process following these injuries. The applicant alleged that he was harassed and discriminated against because of disability.

6The Workplace Safety and Insurance Board determined that the applicant had fully recovered from the effects of the injuries by June 2012.

7On August 13, 2012, the applicant was laid off. The respondent advised that this lay off was due to shortage of work. The applicant alleged that it was not because of a shortage of work.

8In a decision dated September 12, 2012, a WSIB Re-Employment Claims Manager determined that the respondent was in breach of its re-employment obligations under the Workplace Safety and Insurance Act, S.O. 1997. At the time the Application was filed, the respondent had objected to this decision and the matter was at the WSIB Appeals Branch. The December 5, 2013 decision of the Appeals Resolution Officer allowed the objection, finding that the respondent had not breached its re-employment obligations.

9On July 22, 2014, the Tribunal Registrar sent a letter to the parties asking the applicant to advise if the WSIB process was still ongoing.

10On August 5, 2014, the applicant filed a Request for Order During Proceedings, asking that the Application be re-activated.

Delay

11At the telephone conference call hearing the applicant said that he received a letter from the WSIB telling him that his case was before an Appeals Resolution Officer. He said that he called to find out how he could provide information but was not told what to do. The decision of the Appeals Resolution Officer was reached without an oral hearing. The respondent made submissions but it appears that the applicant did not.

12The applicant acknowledged that he received the decision of the Appeals Resolution Officer. He said that he called the WSIB after receiving the decision. The decision found that he was not entitled to benefits he had received for two periods of time but also said that he would not be required to re-pay the benefits. He confirmed this with the WSIB and was told there was nothing for him to do. The applicant did not appeal the decision of the Appeals Resolution Officer.

13The applicant was asked to explain the reasons for the delay in asking that the Application be re-activated. He said that his mother became ill in December 2013, around the time of the Appeals Resolution Officer decision. She required increasing levels of care from the applicant until she passed away in March 2014. The applicant indicated that he was working for a different employer in that time but missed occasional time from work to help his mother. She required his assistance with increasing medical interventions, and stays in hospital.

14The applicant said that after her death he was overwhelmed by dealing with various issues including legal complications regarding his mother’s affairs and property. He said these have been very challenging and time consuming and are still not resolved.

15The applicant agreed that he did not really think about his Application until he received the letter from the Registrar in July 2014. He then quickly filed the request to re-activate.

ANALYSIS

16The Tribunal’s Rule 7.5 provides that where an Application is deferred pending completion of another legal proceeding, the applicant must request re-activation within 60 days after the completion of the other proceeding. This same direction was set out in the Interim Decision that deferred this Application.

17The Tribunal’s Rules also provide that the Tribunal may vary or waive the application of a rule in order to facilitate a fair, open and accessible process to deal with applications made under the Code, and the opportunity for fair, just and expeditious proceedings for the resolution of applications made under the Code.

18The time limit for re-activating a deferred Application is different from the time limit in section 34 of the Code which sets a statutory time limit for filing an Application and provides that an Application must be filed within one year of the alleged discrimination unless there is a good faith explanation for the delay and if no substantial prejudice will result. However, the Tribunal has said that in re-activation cases it is appropriate to consider whether an applicant has provided a good faith explanation for the delay and whether the delay results in prejudice to the respondent.

19Marc-Ali v. Graham, 2012 HRTO 502, at para. 20, set out the principles that the Tribunal will consider when assessing a late Request to reactivate a deferred Application:

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…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.

20In this case, the applicant has presented some compelling information about his circumstances at the time that he received the decision of the Appeals Resolution Officer and in the months after that. I accept that his attention was necessarily focussed on helping his terminally ill mother and that he was then quite distracted by the legal and emotional issues that ensued. At the same time however, the applicant conceded that the Application was not something that he really thought about until he received the letter from the Tribunal Registrar in July, asking about the status of the deferral. While he responded fairly quickly after receiving the letter, it seems that the delay would have continued for quite some time, and perhaps indefinitely, if the Tribunal had not sent the letter.

21In considering whether it is appropriate to waive the two-month deadline for seeking re-activation after the conclusion of a proceeding to which the Application has been deferred, the factor identified by the Tribunal’s Rules is whether doing so would be fair. This involves a consideration of the applicant's circumstances but also the impact on the respondent. If a respondent knows that an Application must be re-activated within two months of the conclusion of the other proceeding, it is entitled to take some reliance from the fact that the Application is not re-activated in that period. In this case, while there were reasons why the applicant did not re-activate the Application in time, given that it appears that the applicant did not put his mind to the Application until he was asked about it by the Registrar five months after the end of the two-month deadline, I find that it is not appropriate to extend the deadline.

22The Application is accordingly dismissed because the Application was not re-activated by the applicant in a timely way.