Jaswinder Ahluwalia v. Plastic Dress Up Ltd., 2016 HRTO 1603

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jaswinder Ahluwalia Applicant

-and-

Plastic Dress Up Ltd. Respondent

DECISION

Adjudicator: Brian Cook Date: December 13, 2016 Citation: 2016 HRTO 1603 Indexed as: Ahluwalia v. Plastic Dress Up Ltd.

APPEARANCES

Jaswinder Ahluwalia, Applicant Nathaniel Onugha, Paralegal

Plastic Dress-up Ltd., Respondent Anthony Lungu, Counsel

1This Application alleges discrimination with respect to employment because of disability and age, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application also alleges that the respondent reprised against the applicant contrary to section 8 of the Code.

2In this Application, the applicant alleges that a supervisor made a comment about the applicant’s age in or about April 2013 and that in or about December 2013, the respondent asked him to tell the Workplace Safety and Insurance Board that he did not have a work-related hearing loss. The applicant's employment with the respondent was terminated on April 15, 2014. The Application alleged that the termination of employment was related to age and disability or was a reprisal for the fact that the applicant had earlier raised his Code-protected rights.

3The Application was filed on April 13, 2015.

4The applicant also filed an application under the Employment Standards Act, alleging that the applicant was entitled to holiday pay, termination pay and severance pay. An Employment Standards Officer determined that the applicant was not entitled to this pay. The applicant appealed that decision to the Ontario Labour Relations Board (OLRB).

5In Interim Decision 2015 HRTO 1302, the Tribunal deferred consideration of the Application because of the appeal that was then before the OLRB. The Interim Decision stated that if either party wished to proceed with the Application a request to re-activate the Application must be filed within 60 days of the conclusion of the OLRB proceeding.

6The Decision of the OLRB was issued on March 4, 2016. The Board determined that the sole cause of the termination of the applicant’s employment with the respondent was the applicant's “wilful misconduct, disobedience and wilful neglect of duty.”

7On July 8, 2016, the applicant’s representative, Mr. Onugha, filed a request to reactivate the Application. The request was filed more than 60 days after the conclusion of the OLRB proceeding.

8In a Case Assessment Direction dated August 16, 2016, the Tribunal directed that a preliminary hearing be held to hear submissions on the issue of whether the Application should be re-activated and whether, if it was re-activated, the Application should be dismissed on the grounds that the decision of the OLRB dealt with the substance of the Application.

9The preliminary hearing was held on November 29, 2016 by telephone conference call. The applicant and Mr. Onugha participated. The respondent was represented by Mr. Lunghu.

Delay in filing the request to reactivate

10Rule 17.5 of the Tribunal’s Rules of Procedure provides:

Where an Applicant wants the Tribunal to proceed with an Application that was deferred pending completion of another legal proceeding, the Applicant must make a request, in accordance with Rules 14.3 and 14.4, no later than 60 days after completion of the other proceeding.

11The Decision of the OLRB is dated March 4, 2016. To comply with the Rule, the request to reactivate should have been submitted by May 2, 2016. The request was not receive by the Tribunal until July 8, 2016.

12The 60 day deadline established by the Rule may be varied by the Tribunal in appropriate circumstances. In this case, the applicant submits that the delay was caused by the sudden illness of his representative. Mr. Onugha states that he became acutely ill from a chronic condition and that he was bedridden and unable to function.

13Mr. Onugha acknowledged that the request to reactivate the Application was late when he initially filed it in July 2016. He explained that the reason was his illness. He provided a copy of a medical requisition form for an x-ray and ultrasound. According to the form, an x-ray and ultrasound of the left shoulder was requested for a possible rotator cuff lesion. There is no mention of the serious illness mentioned by the applicant's representative.

14In a Case Assessment Direction dated September 27, 2016, I directed that if the applicant wished to rely on disability as the reason for the delay in seeking reactivation, he should provide medical confirmation of the disability. Apart from the requisition form mentioned above, no further medical information was provided. At the hearing, Mr. Onugha offered to provide additional medical evidence.

15I asked whether the applicant could have filed the request to reactivate on his own behalf. The applicant agreed that he was aware of the decision of the OLRB. However, he assumed that his representative was dealing with the matter although he was aware that his representative was ill.

16Mr. Onugha argued that the applicant should not suffer from a failure to act by his representative. Mr. Onugha indicated in the original request to reactivate the Application that the reason for the delay was his own health problems. He was advised in the September 27, 2016 Case Assessment Direction that if he wished to argue that the delay was due to disability, he was required to provide some medical documentation to support that the request was not made earlier due to disability. He did not do so but referred to the information provided with the original request. That information indicated only the presence of a shoulder condition that required investigation.

17I note as well that the applicant appears to have been aware that his representative had health issues. It is not clear why he did not take some action on his own behalf if he was aware of the incapacity of his representative.

18For these reasons, I am not satisfied that the request to reactivate should be allowed.

19If I am wrong about the delay issue, I find that the Application should be dismissed under section 45.1 which provides:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

20The Decision of the OLRB found that the sole cause of the termination of the applicant's employment was wilful misconduct, disobedience and wilful neglect of duty. This is a finding of fact and deals with the allegation in the Application that termination of the applicant’s employment was due in part to age and disability or to reprisal.

21According to the decision of the OLRB, the applicant initially claimed in his application that he was terminated in part, because of his age and disability. However, “At the commencement of the hearing the applicant advised he was not pursuing either of those grounds.”

22The applicant had an opportunity to argue that the termination involved Code-protected rights at the hearing before the OLRB. He chose not to do that. The Board found that the sole cause of the termination was wilful misconduct, disobedience and wilful neglect of duty. The applicant cannot now attempt to claim at this Tribunal that these things were not the sole cause of the termination. This is a finding of fact by a tribunal with the full authority to deal with the question of the cause of the termination. The finding that the sole cause of the termination was wilful misconduct, disobedience and wilful neglect of duty means that there was no other cause. The applicant cannot now argue that it was not the sole cause.

23The applicant suggested that even if he is not permitted to continue to argue that the termination of his employment was discriminatory or a reprisal, he should nevertheless be permitted to continue the Application in respect of the allegation that he experienced discrimination during his employment, and before the termination. In particular, he alleges that a supervisor made a comment about the applicant’s age in or about April 2013, and that in or about December 2013, the respondent asked him to tell the Workplace Safety and Insurance Board that he did not have a work-related hearing loss.

24Assuming without deciding that either of these allegations, if true, represented an infringement of the applicant’s Code-protected rights, the allegations relate to events that happened in 2013. The Application was filed in April 2015.

25Section 34 of the Code provides:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

26The allegations about things that were allegedly said in 2013 occurred more than one year before the Application was filed. The applicant offered no good faith explanation for the delay in filing an Application about these alleged incidents.

27As a result, even if the request to reactivate the Application was granted, the substance of the Application (dealing with the termination of employment) was appropriately dealt with by the decision of the OLRB.

28The allegation that two discriminatory comments were made during the applicant's employment was not dealt with by the OLRB. However, these alleged comments were allegedly made more than one year before the Application was filed. There is no good faith explanation for the delay in filing an Application about those alleged comments and so the applicant would not be permitted to continue the Application concerning them even if the Application was reactivated.

29For these reasons, the Application is dismissed.

30It is noted that at the end of the hearing, Mr. Onugha objected to the fact that cases that Mr. Lungu referred to in his submissions had not been provided to him in advance of the hearing. As explained at the hearing, the obligation to disclose documents in advance of the hearing is with respect to documents that are related to the case itself and that a party wishes to rely on as evidence in the hearing. Decisions made in other cases are not evidence and unless they do relate to the particular case that is the subject of the Application do not need to be disclosed in advance.

31Despite this, since Mr. Onugha continued to suggest that it was not fair that he had not had an opportunity to review the cases Mr. Lungu referred to, I offered to briefly adjourn the hearing so that Mr. Onugha could review the cases. He declined this offer. In any event, I have not relied on the cases referred to by Mr. Lungu because this Application turns on the particular facts of the case.