Goffe v. The Regional Municipality of Peel Police Services Board, 2015 HRTO 895

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wallis Goffe Applicant

-and-

The Regional Municipality of Peel Police Services Board and Dufferin-Peel Catholic District School Board Respondents

DECISION

Adjudicator: Geneviève Debané Date: July 7, 2015 Citation: 2015 HRTO 895 Indexed as: Goffe v. The Regional Municipality of Peel Police Services Board

APPEARANCES

Wallis Goffe, Applicant Self-represented

The Regional Municipality of Peel Police Services Board, Respondent Patricia G. Murray, Counsel

Dufferin-Peel Catholic District School Board, Respondent Samantha Crumb, Counsel

1This Application relates to events that occurred on June 11, 2012. The applicant retained counsel, who advised on July 18, 2012, that the applicant would be initiating a civil claim against The Regional Municipality of Peel Police Services Board ("Peel Police"). The Statement of Claim was issued on June 20, 2013. This Application was filed on June 11, 2013, pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination. The applicant's counsel has never represented the applicant in the proceeding before this Tribunal.

2On December 5, 2013, the Tribunal issued Interim Decision 2013 HRTO 2014 (the "Interim Decision"), which deferred the Application pending the conclusion of a civil proceeding commenced by the applicant in Superior Court.

3On February 24, 2014, the Court issued an Order which dismissed the civil claim as abandoned. This was an administrative dismissal on the basis that the applicant had failed to take certain positive steps to maintain the civil action.

4On January 6, 2015, counsel for the respondent Peel Police wrote to the Tribunal, copied to the other parties, requesting that the Tribunal close its file.

5On January 19, 2015, the Tribunal sent the parties a letter requesting that it be advised as to the status of the other civil proceeding.

6On February 2, 2015, the applicant filed a Form 10 Request to reactivate the Application.

7On February 11, 2015, the respondent Peel Police filed a Form 11 response, opposing the Request to reactivate.

8On February 19, 2015, the Tribunal issued a Case Assessment Direction to the parties advising that a preliminary hearing would be held to determine whether the Application should be reactivated by the Tribunal. Though the parties were permitted to file any additional materials in advance of the hearing, none of the parties availed themselves of this opportunity. The preliminary hearing was held on June 10, 2015, and all of the parties participated.

The Law

9Rules 14.3 and 14.4 of the Tribunal's Rules of Procedure state:

14.3 Where a party wishes the Tribunal to proceed with an Application which has been deferred the request must be made in accordance with Rule 19.

14.4 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.

10Rule 14.4 of the Tribunal's Rules requires that a request to proceed with a deferred Application be filed no later than 60 days after the conclusion of the other proceeding. In this case the request to reactivate the Application was made over 11 months 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. Some of the factors that the Tribunal will consider is the length of the delay, the reason for the delay and whether the respondent has been prejudiced by the delay. See for example: Sadeghzadeh v. Gesco Limited Partnership, 2012 HRTO 1109.

Application of the Law to the facts

11In this case the applicant delayed over nine months in filing the Request to reactivate. This is a significant delay.

12In the Request to reactivate the applicant provided the following explanation in his own words:

"I had a parralel proceeding, so i could not proceed with this application at that time, under the advisement of my counsel at that time, it was agreed to abandon the civil proceeding. My counsel at that time(who is no longer my counsel) ill advised me as to a time limit."

"I had abandoned my civil proceeding and decided to seek justice solely through the Human Rights Tribunal, the civil suit did not adequately deal with it because it was abandoned."

13During the preliminary hearing I asked when he decided to abandon the civil proceeding. The applicant advised me that he had never decided to abandon the civil proceeding and that this happened without his knowledge. When I asked the applicant to explain why he indicated in his Request to reactivate that he had agreed to abandon his claim, he advised that he could not recall what he had written. After reviewing the Request to reactivate, the applicant explained that he did in fact decide to abandon his claim at some time in 2013. He could not recall the exact month that he made this decision. He did recall that he met with his lawyer in 2013, who advised him that the Court would administratively dismiss the civil claim as abandoned at some point.

14The applicant then went on to explain that his counsel never advised him that the civil claim was dismissed in February 2014. The applicant could not provide an explanation as to why he did not mention this in his Request to reactivate. When I asked the applicant to explain what he meant by the statement that his counsel "ill advised me as to a time limit" and specifically what time limit he was referring to the applicant stated that he did not know.

15I have some concerns with respect to the various reasons given by the applicant to explain the delay in bringing the request to reactivate. I will first deal with the reason given in the Request to reactivate. The applicant's counsel did not represent the applicant in the proceeding at the HRTO. The Interim Decision, which was sent directly to the applicant, clearly communicated to the applicant the requirement that he had to file a Request to reactivate within 60 days of the conclusion of the other proceeding. Therefore, the Tribunal does not accept the applicant's explanation that he received bad advice from his lawyer as a good reason to explain the delay in reactivating the Application.

16During the preliminary hearing, the applicant provided another explanation to explain the delay in filing the Request to reactivate which was that he did not know that the other proceeding had concluded. Even if I were to accept this explanation as truthful, I note that the applicant decided in 2013 to abandon his civil proceeding so he could pursue this Application. Based on his own explanation he took no steps to ascertain whether the civil proceeding was dismissed by the Court since that time. If the applicant was not aware that the civil proceeding was concluded this is because the applicant failed to exercise any diligence to make inquiries of either the Court or his counsel to determine the status of the civil claim. I also have some concerns that the applicant took no positive steps to conclude the civil claim in light of the fact that he had decided to abandon it.

17I find that the applicant has failed to provide the Tribunal with a good reason for his nine-month delay in filing the Request to reactivate. In these circumstances I need not consider the issue of prejudice.

18The Application is dismissed.

Dated at Toronto, this 7th day of July, 2015.

"Signed by"

Geneviève Debané Vice-chair