HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Natasha Choli
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Toronto Police Services Board, Hudson Bay Company, Owen Baker, Bryan Marville, and Fera Zubaidy
Respondents
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Choli v. Ontario (Community Safety and Correctional Services)
WRITTEN SUBMISSIONS
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Respondent
Marnie Corbold, Counsel
Toronto Police Services Board, Respondent
Michele Brady, Counsel
Hudson Bay Company, Owen Baker, and Bryan Marville, Respondents
William Anderson, Counsel
Fera Zubaidy, Respondent
Self-represented
1The applicant filed an Application alleging discrimination because of gender identity and gender expression contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision addresses the applicant’s request to re-activate her deferred Application. It also provides directions regarding the filing of Responses by the respondents who have so far not filed Responses.
Request to Re-activate deferred application
Background
2The respondent, Toronto Police Services Board (“TPSB”) requested that the Tribunal defer consideration of the Application pending the conclusion of another legal proceeding involving the applicant. By Registrar’s Letter dated August 17, 2015, the Tribunal advised the parties that it would grant the deferral request as no other party had opposed it.
3The other proceeding involving the applicant concluded on the same day as the Tribunal Registrar’s Letter – that is, August 17, 2015.
4On December 15, 2015, the applicant’s representative sought to re-activate the applicant’s deferred Application. However, she mistakenly did so using an improper form (that is, a Form 11 rather than Form 10). After being advised of the mistake, the applicant’s representative advised the Tribunal, with a copy to the respondents, that she would be filing the appropriate form. She did so on January 6, 2016.
5All of the respondents except for the personal respondent, Fera Zubaidy, opposed the applicant’s request to re-activate her deferred Application. They did so on the basis that the applicant failed to file her request within the time frame set out in the Tribunal’s Rules of Procedure (“Rules”) and the applicant failed to provide any reason for the delay in filing her request.
6The applicant’s representative replied by providing the reasons for the delay in requesting re-activation of the Application. She stated that she is a counsellor who is assisting the applicant and has no legal training. She also noted that, at the relevant time, the applicant had no permanent housing, has limited English language skills and has no access to e-mail. The applicant’s representative discussed this case with the applicant at her counselling appointments. The delay arose from the fact that the applicant’s representative was first able to meet with the applicant following the other proceeding on September 16, 2015, she was unaware of the 60 day time limit, and there was confusion over the appropriate form that needed to be filed.
Analysis
7Under Rule 14.4 of the Tribunal’s Rules, where an Application was deferred pending the outcome of another legal proceeding, a request to re-activate the Application must be filed no later than 60 days after the conclusion of the other proceeding.
8The Social Justice Tribunals Ontario (“SJTO”) Common Rules, found in Part 1 of the Tribunal’s Rules of Procedure form part of the Rules of the Human Rights Tribunal. SJTO Common Rule A4.2 provides that the Tribunal may vary or waive the application of any rule or procedure.
9In exercising its authority, SJTO Common Rule A3.1 is also relevant in that it governs the interpretation of the Rules. It reads as follows:
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.
10With regard to the appropriate test to apply when dealing with a failure to comply with a timeline set out in the Tribunal’s Rules of Procedure, 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 re-activation requests as it applies when considering delay in relation to the filing an Application: see Hudson v. Kingston (City), 2013 HRTO 2006; Singh v. Rainbow Circle Co-operative Inc., 2014 HRTO 528; Shaffick v. The Oakville Club Ltd., 2014 HRTO 1424; Ma v. University of Toronto, 2015 HRTO 1551.
11As stated in these decisions:
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.
12Accordingly, the questions for me to consider are whether the applicant has provided some explanation for the delay, and whether it would be fair, just and expeditious to extend the time limit.
13I note that the applicant’s representative advised the Tribunal and the respondents of the applicant’s intention to request a re-activation of her Application on December 15, 2015. Therefore, the applicant’s representative notified the respondents of the applicant’s intention to re-activate the Application just under four months from the date on which the prior proceeding had concluded.
14The applicant’s representative has provided some explanation for the delay. Taking into account the relatively short delay in this case and the explanations offered by the applicant’s representative, I find that it would not be fair or just to refuse to re-activate the Application. In the circumstances of this case, I do not believe it would be fair or just for the applicant to be prevented from proceeding with her Application because of the mistakes made by her counsellor who is acting as her representative. In addition, while the short delay by the applicant in the instant case certainly does not contribute to the value of expeditiousness, I find that the material before me does not support that the respondents have suffered any significant prejudice by the delay.
15For the foregoing reasons, I allow the applicant’s request to re-activate her Application.
Filing of Responses
16To date, the following respondents have not filed Responses to the Application: Toronto Police Services Board and Fera Zubaidy.
17I note that the Tribunal has received no correspondence from Fera Zubaidy regarding this Application. The address that the applicant provided to the Tribunal for this personal respondent was the same address provided for Hudson Bay Company, Owen Baker, and Bryan Marville. All correspondence for Fera Zubaidy has been sent to this address. It is unclear from the Application whether Fera Zubaidy is an employee of Hudson Bay Company and whether this personal respondent has been receiving the correspondence relating to this proceeding. As a result, I make the directions set out below to ensure proper delivery of documents to this personal respondent.
ORDER
18For the foregoing reasons, the Tribunal makes the following order:
a. The applicant’s request for re-activation of her Application is granted;
b. The respondent Toronto Police Services Board must file a full Response to the Application within 35 days of the date of Interim Decision.
c. Within 7 days of the date of this Interim Decision, counsel for Hudson Bay Company must advise whether Fera Zubaidy is an employee of Hudson Bay Company. Counsel for the Hudson Bay Company also must advise the Tribunal in writing whether the Hudson Bay Company has been forwarding the correspondence relating to this proceeding to Fera Zubaidy. If not, counsel for the Hudson Bay Company must advise the Tribunal whether it has an alternate address for Fera Zubaidy.
Dated at Toronto, this 3rd day of February, 2016.
”Signed By”
Jo-Anne Pickel
Vice-chair