Plummer v. Workplace Safety and Insurance Board, 2016 HRTO 1325

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Plummer

Applicant

-and-

Workplace Safety and Insurance Board and Rehabilitation Network Canada Inc.

Respondents

INTERIM DECISION

Adjudicator: Josée Bouchard

Date: October 14, 2016

Citation: 2016 HRTO 1325

Indexed as: Plummer v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS

Peter Plummer, Applicant

Lori Mishibinijima, Counsel

Workplace Safety and Insurance Board, Respondent

Greg Bullen, Counsel

Introduction

1The applicant filed an Application on September 18, 2008 pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. On January 19, 2009, the Tribunal deferred consideration of the Application pending the conclusion of the Workplace Safety and Insurance Board (“WSIB”) appeal proceedings.

2The Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) issued Decision No. 632/16, 2016 ONWSIAT 733 (“WSIAT Decision”) on March 17, 2016 and a letter of implementation of the WSIAT Decision on April 11, 2016.

3The applicant filed a Request for an Order During Proceedings on August 5, 2016 requesting the reactivation of the Application (“request to reactivate”). The respondent WSIB responded to the request to reactivate, opposing it on the basis of delay and requesting the dismissal of the Application on the basis that another proceeding has appropriately dealt with the substance of the Application.

4This Interim Decision addresses the following:

1. whether the Application should be reactivated pursuant to Rule 14 of the Tribunal’s Rules of Procedure (“Rules”); and
2. whether the Application should be dismissed, in whole or in part, on the basis that another proceeding has appropriately dealt with the substance of the Application.

Reactivation

Parties’ Submissions

5Rules 14.3 and 14.4 of the Rules outline the procedure by which a party may proceed with an application that has been deferred. The Rules specify that a request to proceed must be filed no later than 60 days after the conclusion of the other proceeding.

6The applicant argues that, due to an oversight, he only recently forwarded the WSIAT Decision to his representative. The applicant insists that he genuinely wants to reactivate his human rights matter and requests that the Tribunal exercise its discretion and extend the timeline.

7The applicant argues that in Vonella v. Blake Jarrett and Company, 2010 HRTO 2158 at para. 13, and Griffith v. Knight, 2013 HRTO 1758 at para. 13, the Tribunal states that it may extend the time if the delay was short and the respondent has not alleged any specific prejudice. In both those decision the delay was around one month while in this case, the request to reactivate was filed 2.5 months late. There is no indication that the respondents would be prejudiced by this delay.

8The respondent WSIB argues that the applicant knew, or ought to have known, about the 60 day time limit. In addition, the respondent WSIB maintains that even if the Tribunal accepts that the applicant and/or his counsel were unaware of the applicable rules, ignorance is generally not a reasonable explanation for a failure to act in a timely manner. McLachlan v. Forensic Investigations of Canada, 2013 HRTO 506 at para. 29 (McLachlan).

9The respondent WSIB observes that the Tribunal has rendered a number of decisions in which it has denied reactivation exclusively because of delay where the applicant failed to provide a valid explanation or clear good faith reason for the delay. In those cases, the Tribunal did not consider whether the respondent had suffered a prejudice. See McLachlan, above; Thompson v. Liquor Control Board of Ontario, 2013 HRTO 1847 and Heron v. Canadian Blood Services, 2015 HRTO 664.

Analysis and Decision

10The Application is reactivated.

11I find that the delay is brief and was due to an oversight. In addition, this matter has been ongoing for about 10 years. The respondents have not shown they would be prejudiced as a result of reactivation.

Application of Section 45.1 of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

Parties’ Submissions

12The respondent WSIB argues that the Application should be dismissed pursuant to s. 45.1 of the Code as the WSIAT Decision has appropriately deal with its substance.

13The applicant and respondent Rehabilitation Network Canada Inc. have not had an opportunity to make submissions on this issue. Accordingly, I order that the respondent Rehabilitation Network Canada Inc. file with the Tribunal and deliver to the other parties its written submissions within 14 days of this Interim Decision. I further order that the applicant file with the Tribunal and deliver to the other parties his written response within 14 days of the respondent Rehabilitation Network Canada Inc.’s submissions.

order

14The Tribunal orders as follows:

1. The Application is reactivated;
2. The respondent Rehabilitation Network Canada Inc. will file with the Tribunal and deliver to the other parties written submissions within 14 days of this Interim Decision.
3. The applicant will file with the Tribunal and deliver to the other parties his written response within 14 days of the respondent Rehabilitation Network Canada Inc.’s submissions.

Dated at Toronto, this 14^th day of October, 2016.

“Signed By”

Josée Bouchard

Vice-chair