HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda Hill

Applicant

-and-

Cotton Inc. and Renzo Giancaterino

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: October 28, 2016 Citation: 2016 HRTO 1394 Indexed as: Hill v. Cotton Inc.

WRITTEN SUBMISSIONS

Linda Hill, Applicant Self-represented

Cotton Inc., Respondent Bradley J. Troup, Counsel

1The purpose of this Interim Decision is to deal with the applicant’s request to reactivate her deferred Application.

2On April 1, 2009, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3On July 20, 2009, the organization respondent filed a Response, which requested that the Application be deferred pending the conclusion of a proceeding before the Workplace Safety and Insurance Board (“WSIB”) and the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). The individual respondent filed a separate Response, which also requested that the Application be deferred.

4On August 5, 2010, the Tribunal issued an Interim Decision, 2010 HRTO 1645, which ordered the deferral of the Application pending the conclusion of an appeal to an Appeals Resolution Officer (“ARO”) of the WSIB.

5On August 8, 2012, the applicant’s counsel at the time sent the Tribunal a letter, which stated that the applicant had appealed the WSIB ARO’s Decision to the WSIAT, and requested that the Application continue to be deferred pending the conclusion of the proceeding before the WSIAT. The respondents did not file a response to this letter.

6On June 10, 2016, the WSIAT issued a Decision, which denied the applicant’s appeal. The Decision also stated that if the applicant wished to pursue a Charter argument, she was required to advise the WSIAT of such within two months, failing which the Decision would be considered final. On June 21, 2016, the WSIAT sent the applicant a letter reiterating this requirement, and specifying the deadline as August 10, 2016. The applicant did not notify the WSIAT that she wished to pursue a Charter argument.

7On August 23, 2016, the applicant filed a Request for an Order During Proceedings (“RFOP”), which requested that her deferred Application be reactivated.

8On September 7, 2016, the organization respondent filed a Response to the RFOP, which opposed the applicant’s request to reactivate her deferred Application, and raised issues related to issue estoppel, abuse of process, and findings of witness credibility.

9Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure provide that where a party wishes to proceed with an Application which has been deferred, the party must file an RFOP with the Tribunal and deliver it to the other parties within 60 days after the conclusion of the other proceeding, and must include a copy of the decision or order in the other proceeding, if any.

10In her RFOP, the applicant stated that her request to reactivate her deferred Application was timely because the proceeding before the WSIAT concluded on August 10, 2016, which was the deadline for her to pursue a Charter argument, which she decided not to do.

11In its Response to the applicant’s RFOP, the organization respondent stated that the applicant’s request to reactivate her deferred Application was not timely because (a) the applicant waited more than 60 days following the WSIAT’s final Decision dated June 10, 2016 to request that her Application be reactivated, and (b) the applicant did not request that her Application be reactivated within 60 days after the conclusion of the appeal before the WSIB ARO.

12I do not agree with the organization respondent that the applicant’s request to reactivate her deferred Application was not timely because she did not request that her Application be reactivated within 60 days after the conclusion of the appeal before the WSIB ARO. The applicant appealed the WSIB ARO’s Decision to the WSIAT, which meant that the proceeding was ongoing and had not concluded. Furthermore, the organization respondent had requested that the Application be deferred pending the conclusion of the proceeding before both the WSIB and the WSIAT, and did not respond when the applicant’s counsel at the time sent the Tribunal a letter, which requested that the Application continue to be deferred pending the conclusion of the proceeding before the WSIAT.

13However, I agree with the organization respondent that the applicant’s request to reactivate her deferred Application following the WSIAT’s final Decision was not timely. The Decision is dated June 10, 2016, but the applicant did not file her request to reactivate her Application until August 23, 2016, which was approximately two weeks outside the 60-day time limit in the Rule 14.4 of the Tribunal’s Rules.

14The issue before me is whether the Tribunal should allow the applicant to reactivate her deferred Application even though she filed her request outside the 60-day time limit in the Rule 14.4.

15The time limit at issue is found in the Tribunal’s Rules, and is not a statutory time limit. In order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal has the authority to vary or waive the application of any Rule, or lengthen or shorten any time limit in the Rules. See Oliver v. South Simcoe Police Services Board, 2012 HRTO 863 at para. 17.

16The Social Justice Tribunals Ontario (“SJTO”) Common Rules, which are found in Part 1 of the Tribunal’s Rules of Procedure, form part of the Tribunal’s Rules. SJTO Common Rule A4.2 provides that the Tribunal may vary or waive the application of any Rule.

17SJTO Common Rules A3.1 and A.3.2 also provide:

A3.1 The rules and procedures of the tribunal shall be liberally and purposively interpreted and applied to:

a) promote the fair, just and expeditious resolution of disputes,

b) allow parties to participate effectively in the process, whether or not they have a representative,

c) ensure that procedures, orders and directions are proportionate to the importance and complexity of the issues in the proceeding.

A3.2 Rules and procedures are not to be interpreted in a technical manner.

18Rule 1.7(a) of the Tribunal’s Rules also provides that in order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may lengthen or shorten any time limit in the Rules.

19There has been some lack of clarity in the Tribunal’s jurisprudence with respect to the appropriate test to apply when dealing with a failure to comply with 60-day time limit in Rule 14.4. I agree with and adopt the approach taken in the Tribunal’s more recent jurisprudence. These decisions have rejected the notion that this Tribunal should apply the same approach to delay in relation to reactivation requests as it applies when considering delay in relation to the filing an Application. See Hudson v. Kingston (City), 2013 HRTO 2006 (“Hudson”); Singh v. Rainbow Circle Co-operative Inc., 2014 HRTO 528; Shaffick v. The Oakville Club Ltd., 2014 HRTO 1424; and Ma v. University of Toronto, 2015 HRTO 1551.

20In Hudson, above, the Tribunal stated at para. 36:

In deciding whether it would be fair, just and expeditious to extend the time limit in this case, I must consider both the time limit in Rule 14.4 in the context of the overall scheme of the Code and Rules, as well as the reasons for the applicant’s request to extend it. The 60-day limit represents an attempt by the Tribunal to incorporate the values of fairness, justice and expeditiousness into this step of the proceedings and to balance those factors by acknowledging that parties will need a reasonable, but finite, amount of time to make a decision about reactivation. A request to extend the timeline must, therefore, be supported by some explanation.

21Therefore, the Tribunal has to consider whether the applicant has provided some explanation for the delay, and whether it would be fair, just and expeditious to extend the time limit.

22The applicant’s explanation for the delay is that she believed that her request to reactivate her deferred Application was timely because she believed that the proceeding before the WSIAT concluded on August 10, 2016, which was the deadline for her to pursue a Charter argument, which she decided not to do. This is incorrect, but it is not difficult to see how someone who is not legally trained could hold this mistaken belief. The delay of two weeks was also short. Furthermore, the respondents have not identified any unfairness that they would suffer if the time limit was extended. In any case, it is difficult to how the respondents would be significantly prejudiced by the short delay given that the hearing before the WSIAT, which dealt with the same basic set of facts that are before this Tribunal, ended on April 28, 2016.

23In the circumstances, I am satisfied that the Tribunal should waive the application of the 60-day time limit in Rule 14.4, and grant the applicant’s request to reactivate her deferred Application. Although the applicant’s two-week delay in filing her request slightly undermines the Tribunal’s mandate to expeditiously resolve the Application before it, given the applicant’s explanation for the delay, the shortness of the delay, and the lack of significance prejudice to the respondents, it is more fair and just to grant the request to reactivate the Application than to deny it.

24Accordingly, the applicant’s request to reactivate her deferred Application is granted. The Tribunal’s Registrar will schedule a two-day hearing. Given that the facts at issue in the Application occurred in 2007 and 2008, the hearing should be scheduled as soon as possible. Within two weeks of the date of this Interim Decision, the parties shall consult with each other with respect to their mutual availability for a hearing, and provide their mutual availability to the Registrar.

25The adjudicator assigned to the hearing will deal with the issues related to issue estoppel, abuse of process, and findings of witness credibility, which have been raised by the organization respondent.

26The Tribunal also directs the parties’ attention to Rule 15A of the Tribunal’s Rules which provides:

15A.1 With the agreement of the parties, the Tribunal member hearing an Application may act as mediator. In such circumstances, the mediator may continue to hear the matter as adjudicator.

15A.2 Where the parties agree to mediation-adjudication, they must sign a mediation-adjudication agreement before the mediation commences.

The parties shall advise the Tribunal prior to or at the outset of the hearing if they are interested in participating in a Mediation-Adjudication.

27I am not seized of this matter.