Robertson v. Ontario (Health and Long-Term Care), 2015 HRTO 781

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Robertson

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health and Long-Term Care, Waypoint Centre for Mental Health Care and Carol Lambie

Respondents

DECISION

Adjudicator: Brian Eyolfson

Date: June 12, 2015

Citation: 2015 HRTO 781

Indexed as: Robertson v. Ontario (Health and Long-Term Care)

APPEARANCES

James Robertson, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health and Long-Term Care, Respondent

Beth Beattie, Counsel

Waypoint Centre for Mental Health Care and Carol Lambie, Respondents

Janice Blackburn, Counsel

Introduction

1This Application was filed on November 3, 2011, under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination on the basis of race, colour, ancestry, and disability, and reprisal, in the areas of employment, membership in a vocational association, and goods, services and facilities.

Relevant procedural background

2This Application was deferred by Interim Decision, 2012 HRTO 942, dated May 9, 2012, pending the resolution of an appeal of an Ontario Review Board (“ORB”) matter in the Ontario Court of Appeal. In this Interim Decision the Tribunal directed the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which outline the procedure by which the Application could be brought back on after the conclusion of the applicant’s appeal proceeding.

3On February 11, 2014, the Tribunal wrote to the applicant, directing the applicant to advise the Tribunal, by March 13, 2014, whether the Court of Appeal proceeding was still ongoing and, if possible, when it was expected to be completed. In this correspondence, the Tribunal again drew the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules, which outline the procedure by which the Application could be brought back on after the conclusion of the other proceeding.

4In further correspondence to the applicant, dated March 18, 2014, the Tribunal indicated that it received a letter from the applicant, dated February 28, 2014, but there was no indication that the applicant delivered a copy of the letter to the respondents. The Tribunal returned the applicant’s letter to him, referring to Rule 1.12 of the Tribunal’s Rules, which states that all written communication with the Tribunal must be delivered to all other parties.

5The Tribunal’s March 18, 2014 correspondence to the applicant also confirmed that the applicant had a telephone conversation with Tribunal staff on March 17, 2014, wherein he requested an extension of time to respond to the Tribunal’s February 11, 2014 status inquiry letter. The applicant was granted until March 31, 2014 to respond. The Tribunal also received a letter from the applicant on March 28, 2014, stating that he was informed that he must file a “Form 10”, and asking that such a document be forwarded to him.

6On April 17, 2014, the applicant filed a Request for an Order During Proceedings (“Request” or Form 10) to re-activate his deferred Application. On June 2, 2014, the Tribunal wrote to the applicant and advised that he did not include a copy of the decision or order in the other proceeding, as required by Rule 14.4 of the Tribunal’s Rules.

7On June 16, 2014, the Tribunal received correspondence from the applicant, including a copy of a ruling dated January 14, 2012 from the ORB. On July 3, 2014, the Tribunal again wrote to the applicant, indicating that the Application was deferred pending the resolution of his application to the Court of Appeal, and that the Tribunal would review his Request once it received a copy of the decision from the Court of Appeal.

8On July 31, 2014, the applicant provided the Tribunal with a copy of an Appeal Book Endorsement from the Court of Appeal, dated December 14, 2012, indicating that his appeal was heard by the Court of Appeal on December 12, 2012, and dismissed.

REQUEST TO RE-ACTIVATE – PRELIMINARY HEARING

9In a Case Assessment Direction dated December 18, 2014, the Tribunal noted that Rule 14.4 of the Tribunal’s Rules states that a request to proceed with a deferred Application must be filed no later than 60 days after the conclusion of the other proceeding. The Tribunal indicated that it appeared that the applicant failed to file his Request to re-activate in accordance with Rule 14 of the Tribunal’s Rules, and that he had not provided a good reason for the failure to do so. The Tribunal determined that it was appropriate to schedule a telephone conference call to address the delay in requesting re-activation, and whether the Application should be dismissed because of delay. The parties were invited to deliver and file any written materials or documents prior to the conference call, if they wished to do so.

10At the telephone conference call hearing, the applicant submitted that he does not have direct access to mail at the respondent facility, he has no idea if mail being sent is being routed, and there is no way for him to check if mail got out or was received.

11The applicant also submitted that he is quite sure he spoke to Tribunal staff, and was advised to file a form. He found out later that the form he sent to re-activate his Application did not arrive, and he had to submit it again. He submitted that he spoke to Tribunal staff on more than one occasion, and followed the instructions he was given. When asked if he recalled when he sent forms to the Tribunal, the applicant submitted that his computer was disrupted, so he does not have the records, but he remembered writing in 2013, and he believed that he did more than once. The applicant also submitted that he wrote several times, referring to “the confusion” about the judgment or matter still being before the Court of Appeal.

12The respondent Ministry submitted that the applicant was clearly aware that the Court of Appeal rendered its decision in December 2012, as he was in the court room at the time. The respondent also submitted that it is clear that, in order to proceed with the Application, the applicant was required to let the Tribunal know within 60 days of the Court of Appeal’s decision. The respondent submits, however, that the applicant was silent for 14 months, until he received the Tribunal’s February 11, 2014 letter requiring that he advise as to the status of the Court of Appeal proceeding. The respondent submits that the applicant has not provided a good reason for his delay in requesting re-activation, and that it is prejudiced by the delay.

13In written submissions provided in advance of the preliminary hearing, the respondent Ministry submitted that the delay is significant, and prejudice to the Ministry may be inferred. The respondent also submitted that the delay prejudices its ability to give evidence to defend the applicant’s allegations.

14The other respondents, Waypoint and Ms. Lambie, also submitted that the applicant was present in the Court of Appeal when his appeal was dismissed on December 12, 2012. They submitted that, for a time, the applicant purported to be bringing an application to seek leave to appeal to the Supreme Court of Canada, but he did not do so. They submit that the applicant’s delay in bringing the Request to re-activate is very significant, that the applicant has not provided a good reason for the inordinate delay, and that, at a certain point in time, prejudice is inferred. In written submissions provided in advance of the preliminary hearing, the respondents also submitted that the delay prejudices them in their ability to provide the best evidence to the Tribunal.

15In reply, the applicant submitted that the Ontario Court of Appeal issued its decision on December 14, 2012, then there was 14 months of silence until he called the Tribunal to inquire why his Application was not proceeding. He submitted that he thought that he sent the Court of Appeal decision twice, and he was seeking a hearing back in 2012 when he called the Tribunal. He also referred to a gap in communication between December 2012 and March 2014, and submitted that he believed he made a phone call.

DECISION

16Rule 14.4 of the Tribunal’s Rules clearly requires that a request to proceed with a deferred Application be filed no later than 60 days after the conclusion of the other proceeding. While the Tribunal has the power to waive the strict application of its Rules (Rule 5.2), there must be “a good reason” to do so: See Baker v. Kingston Hospital, 2009 HRTO 2079, at para. 6. Also, in addressing a late re-activation request in Marc-Ali v. Graham, 2012 HRTO 502, the Tribunal stated as follows, at para 20:

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 (in Baker, this requirement was worded slightly differently, but I see no significant difference between “good faith” and “a good reason”); 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.

17In the present case, the applicant did not dispute that he was aware that the Court of Appeal proceeding, to which this Application was deferred, was dismissed on December 12, 2012, followed by a written endorsement on December 14, 2012. The applicant also did not indicate that he was not aware of the requirement that a request to re-activate his Application was to be delivered and filed within 60 days of the conclusion of the Court of Appeal proceeding, in accordance with Rules 14.3 and 14.4 of the Tribunal’s Rules. The Tribunal’s Interim Decision deferring the Application specifically directed the applicant’s attention to Rules 14.3 and 14.4 of the Tribunal’s Rules, and indicated that these Rules outline how the Application could be brought back on after the conclusion of the appeal proceeding. The applicant was also advised to review the Tribunal’s Rules, by letter from the Registrar, when he initially filed his Application with the Tribunal.

18At the preliminary hearing, the applicant essentially submitted that he cannot be sure if the mail he sends while at the respondent’s facility is actually delivered. He also submitted that he spoke to Tribunal staff on more than one occasion, followed the instructions he was given, and sent forms to the Tribunal to re-activate his Application more than once in 2013. In reply submissions, the applicant submitted that he thought he sent the Court of Appeal decision to the Tribunal twice, and that he called the Tribunal back in 2012, seeking a hearing. He also submitted that there was 14 months of silence after the Court of Appeal dismissed his Application, until he called the Tribunal to inquire why his Application was not proceeding.

19From a review of the Tribunal’s file in this matter, there is no indication that the applicant contacted the Tribunal between July 2012, and when he wrote to the Tribunal by letter dated February 28, 2014. It also appears that the applicant spoke to Tribunal staff on March 17, 2014. The applicant made these contacts after the Tribunal wrote to him by letter dated February 11, 2014, seeking an update as to the status of the Court of Appeal proceeding, and reminding him of the requirements of Rules 14.3 and 14.4 of the Tribunal’s Rules concerning re-activation of deferred applications. It also appears that when he spoke to Tribunal staff on March 17, 2014, he requested an extension of time to respond to the Tribunal’s February 11, 2014 letter.

20In a subsequent letter to the Tribunal, dated March 26, 2014, the applicant confirmed that he had no pending court matters, and that he wanted to proceed with his Application. He stated that he was informed that he must file a Form 10, and asked that one be forwarded to him. He also stated that he would serve the respondents. There is no indication in his letter that he previously sought re-activation of his Application by delivering or filing any document. While the applicant filed a Request to re-activate his Application on April 17, 2014, he did not provide a copy of the Court of Appeal’s written endorsement dismissing his appeal until July 31, 2014, after the Tribunal made two written requests for the decision in the other proceeding.

21In my view, the applicant’s submission in reply that there was a gap in communication between December 2012, when he believes he made a phone call, and March 2014, is not consistent with his earlier submission that he actually filed a request to re-activate his Application in 2013. Considering all of the circumstances, I simply do not accept the applicant’s rather vague submissions that he sought re-activation of his Application with the Tribunal, prior to the Tribunal writing to him on February 11, 2014, seeking an update as to the status of his Court of Appeal proceeding. There is nothing in the Tribunal’s file to indicate that he did so. Even if the applicant was expecting to hear something from the Tribunal after December 2012, in my view, it also was not reasonable for the applicant to wait for well over a year without hearing anything from the Tribunal.

22The applicant’s Request to re-activate the Application was filed on April 17, 2014, more than 16 months after his Court of Appeal proceeding concluded, and more than 14 months past the 60-day time limit for doing so in the Tribunal’s Rules. I find that the applicant has not provided a good reason for why he waited as long as he did to deliver and file his Request to re-activate his Application. This is a significant delay that could also result in some prejudice to the respondents from the inevitable impact of the passage of time on witnesses’ memories.

23Considering all of the circumstance, including the length of the delay, the absence of a good reason provided by the applicant for the delay, and the possibility of some prejudice to the respondents as a result of 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.

24I note that, on March 11, 2015, the applicant filed a request that the Tribunal appoint counsel for him in this Application. The applicant’s request was not placed before the Tribunal prior to the March 16, 2015 preliminary hearing, and was drawn to the Tribunal’s attention by the applicant at the end of the hearing. The Tribunal indicated that it did not have the authority to appoint counsel, and referred the applicant to the Human Rights Legal Support Centre. The Tribunal also declined the applicant’s request, made at the end of his submissions in reply, that this matter be deferred so that he could obtain counsel.

25The Request to re-activate the Application is dismissed, and the Application is therefore dismissed.