Human Rights Tribunal of Ontario
BETWEEN:
Heather O’Neill Applicant
-and-
St. Joseph’s Healthcare Hamilton Respondent
-and-
Canadian Union of Public Employees and its Local 786 Intervenor
INTERIM DECISION
Adjudicator: Josée Bouchard Date: November 14, 2016 Citation: 2016 HRTO 1460 Indexed as: O’Neill v. St. Joseph’s Healthcare Hamilton
WRITTEN SUBMISSIONS
Heather O’Neill, Applicant Wade Poziomka, Counsel
St. Joseph Healthcare Hamilton, Respondent Frank Angeletti, Counsel
Canadian Union of Public Employees and its Local 786, Intervenor Elizabeth Nurse, Counsel
1This Interim Decision addresses the applicant’s request to reactivate the deferred Application and the respondent’s request to dismiss the Application for delay.
2The applicant filed an Application under 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.
3On September 14, 2015, the respondent filed a Request for an Order During Proceedings requesting the dismissal of the Application pursuant to section 34 of the Code on the basis that the allegations are outside the one-year limitation period and therefore not within the Tribunal’s jurisdiction (“request to dismiss for delay”).
4On October 13, 2015, the applicant filed a Response to a Request for an Order opposing the request to dismiss for delay.
5On March 15, 2016, the Tribunal deferred the Application on consent of the parties pending the resolution of a grievance/arbitration.
6On August 12, 2016, the applicant filed a Request for an Order During Proceedings, requesting the reactivation of the Application (“request to reactivate”). The applicant explains that she received a letter, dated July 8, 2016, from the intervenor in regard to her grievance 14-E-00719 between the intervenor and the respondent. The letter indicates that the intervenor will not proceed further with the applicant’s grievance and will be withdrawing the grievance.
7On August 17, 2016, the respondent filed a Response to a Request for an Order requesting that the Application be dismissed due to untimeliness of the Application.
8On August 19, 2016, the intervenor filed a Response to a Request for an Order confirming that it had withdrawn grievance 14-E-00719 on August 18, 2016.
reactivation
9Neither the respondent nor the intervenor opposed the request to reactivate. In the circumstances, I find that it is appropriate to reactivate the Application.
delay
10The respondent argues that the Application should be dismissed on the basis that it is untimely. It maintains that the Application contains allegations from 2002 to May 13, 2014. The applicant filed her Application on June 30, 2015. The respondent submits that the applicant has not shown that the delay in filing her Application was incurred in good faith. She alleges that she was unable to claim her rights due to the impact of her termination on her disabilities. However, the respondent maintains that the applicant was represented by the intervenor and filed a timely grievance under the Collective Agreement. The respondent disputes that the applicant’s disabilities rendered her unable to take the necessary steps to file her Application within the statutory time limit.
11Further, the respondent submits that it would be substantially prejudiced by the applicant’s delay in bringing the application. The recollections of witnesses will have faded and the delay has prevented the respondent from taking steps to preserve evidence and/or record witnesses’ memories of the events.
12The applicant states that there are two separate categories of factual assertions made within the Application. The first category provides context necessary to enable the applicant to present her case. The second category provides the facts the applicant intends to rely upon to prove the violation of the Code. The applicant submits that the alleged violations occurred approximately 14 months prior to the filing of the Application, namely two months beyond the one-year period contemplated by section 34. The applicant argues that she submitted medical evidence dated June 25, 2015 to substantiate that she was medically unable to exercise her rights and file an Application.
13The Tribunal does not appear to be in receipt of the applicant’s medical evidence of June 25, 2015. As a result, the Tribunal will consider whether the Application should be dismissed for delay once it has received the medical documentation to support the reasons for the delay.
order
14The Tribunal orders as follows:
a. The Application is reactivated;
b. The applicant is ordered to file with the Tribunal, and deliver to the other parties, within 7 days of this Interim Decision, the medical evidence to support the reasons for the delay in filing the Application.
15I am not seized.
Dated at Toronto, this 14th day of November, 2016.
“Signed by”
Josée Bouchard Vice-chair