HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Linda De Rose
Applicant
-and-
Windsor-Essex Catholic District School Board and Jim Minello
Respondents
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: De Rose v. Windsor-Essex Catholic District School Board
WRITTEN SUBMISSIONS
Linda De Rose, Applicant
James Renaud, Counsel
Windsor-Essex Catholic District School Board and Jim Minello, Respondents
Brian Nolan, Counsel
1This Interim Decision addresses the applicant’s request to re-activate her deferred Application. It also addresses the respondents’ request to dismiss the Application as untimely. Finally, it addresses the next steps in this case.
2By Application filed on October 25, 2010, the applicant alleged that the respondents discriminated against her in employment contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). The Tribunal deferred the Application on consent of the parties by Registrar’s Letter dated December 21, 2010. The Tribunal deferred consideration of the Application pending the completion of the grievance proceeding between the parties.
3It appears that some evidence was heard in the grievance proceeding in this case but that the applicant ultimately requested that her union withdraw her grievance part way through the proceeding. By letter dated November 13, 2015, the applicant’s union confirmed that, following her request, it withdrew all of the grievances that she had filed and that it had referred to an arbitrator for decision.
4On January 6, 2016, the applicant requested that the Tribunal re-activate her deferred Application.
5The respondents filed a Response to the applicant’s RFOP in which they took the position that the Tribunal should not re-activate the applicant’s Application due the time that elapsed since the filing of the Application and the prejudice caused to the respondents by the applicant’s conduct in the grievance proceeding. The respondents have also filed their own RFOP requesting that the Tribunal dismiss the Application as untimely.
6By letter dated February 1, 2016, the applicant’s counsel objected to portions of the respondent’s Response to the applicant’s RFOP. He argued that the respondents had disclosed certain information in violation of “the general prohibition/implied undertaking against introducing evidence from the mediation process into the adjudicative process.”
7I issued a Case Assessment Direction (“CAD”) directing the respondents to respond to the applicant’s claim that they had improperly disclosed information in their Response to the RFOP.
8Having now reviewed the respondents’ Response to my CAD, as well as all of the materials filed following the applicant’s request to re-activate her Application, I do not agree with the applicant’s counsel that the respondents disclosed any privileged information or any documents or information that are subject to the implied undertaking rule. Much of the information relied upon by the respondent had been disclosed to the Tribunal already by the applicant, the respondent or the applicant’s union in response to the Tribunal’s requests for updates on the status of the grievance proceeding. Most of the information disclosed by the respondents relates to the events that took place during the grievance process. In my view, that information is not subject to mediation privilege as it does not pertain to the discussions of the parties during a mediation. The information is also not subject to the implied undertaking rule as it does not relate to information or documents that were disclosed by a party for the purposes of the grievance proceeding.
9Despite my finding that the respondents did not improperly disclose any information in their Response to the applicant’s RFOP, I also do not find that any of the information provided by the respondents supports their position that the Tribunal should not re-activate the Application.
10I do agree with the respondents that the very significant passage of time in this matter is likely to adversely impact the hearing of this case. From the materials filed by the parties, it appears that both parties bear some responsibility for the delays in the grievance proceeding. Which party bears the most responsibility is unclear. The key point for present purposes is that I have serious concerns about the prospects of the Tribunal conducting a hearing into allegations that are over ten years old.
11Despite these serious concerns, the respondents have provided no authority that supports their submission that the Tribunal should deny the applicant’s request to re-activate her Application. Neither of the decisions cited by the respondents support their position that the Application should not be re-activated: Keith v. GNI Management Group Inc., 2014 HRTO 1824 and Yousefi v. Eugene Collision Limited, 2013 HRTO 1180. In both these decisions, the Tribunal had to determine whether or not it was appropriate to defer an application pending the conclusion of an appeal of a Workplace Safety and Insurance Board (“WSIB”) decision. In the decisions, the Tribunal discussed the potential prejudice that parties may experience when applications are deferred pending the conclusion of WSIB appeals, due to the significant delays in that system. However, neither decision supports the respondents’ position that the Tribunal should decline to re-activate the Application in this case.
12For the reasons set out above, I grant the applicant’s request to re-activate her deferred Application.
Request to Dismiss the Application as Untimely
13I note that the Tribunal accepted the Application for filing on October 25, 2010. The applicant’s counsel e-mailed the Application on Friday October 22, 2010 at 9:08 PM. Since this was outside the Tribunal’s business hours, the Application was accepted for filing on the following Monday: October 25, 2010. For some unknown reason, the Tribunal referred to a filing date of October 26, 2010 in the Notice of Intent to Defer issued in this case. The Tribunal then mistakenly reproduced the October 26, 2010 date in its Case Assessment Direction dated February 19, 2013. These references to the filing date being October 26, 2010 were made in error. The Application was accepted for filing on the morning of Monday October 25, 2010.
14Notwithstanding the applicant’s submissions regarding an ongoing breach of the duty to accommodate, the last incident of alleged discrimination contained in the Application appears to have occurred when the applicant’s employment was terminated on October 23, 2009. Therefore, the one year deadline for the filing of the Application fell on Saturday October 23, 2010. Under Rule 1.10 of the Tribunal’s Rules Procedure, when the time for doing an act expires on a holiday (which includes a week-end day), the act may be done on the next day that is not a holiday. Accordingly, the deadline for the filing of the Application fell on Monday October 25, 2010 which is the date on which the Application was accepted for filing.
15For these reasons, the Application as a whole cannot be dismissed as untimely.
Next steps
16As noted above, I have serious concerns about the passage of time in this case. If this case does proceed to a full hearing on the merits before this Tribunal, it will require a high degree of case management including the possible dismissal of any allegations that may be untimely if they cannot reasonably be said to form a series of incidents with the timely allegation in this case. At this point, it is difficult to determine whether any allegations may be untimely without an actual Response (Form 2) from the respondent. Therefore, I direct the respondents to file a full Response to the Application. Once the Tribunal has the opportunity to review the respondents’ Response, it will advise the parties of the next steps in this matter.
ORDERS AND DIRECTION
17The Tribunal orders as follows:
a. The applicant’s request to re-activate her deferred Application is granted
b. The respondents’ request that the Tribunal dismiss the Application in its entirety as untimely is denied. This ruling is made without prejudice to the respondents’ right to renew their request to dismiss certain allegations contained in the Application as untimely after they have filed their Response to the substance of the Application.
c. The respondents are directed to file a Response (Form 2) within 35 days of the date of this Interim Decision.
d. Once the Tribunal has had the opportunity to review the respondents’ Response, it will advise the parties of next steps in this matter.
Dated at Toronto, this 3rd day of March, 2016.
“Signed By”
Jo-Anne Pickel
Vice-chair