Shelley Nickson v. The Corporation of the County of Lambton, 2016 HRTO 366

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shelley Nickson

Applicant

-and-

The Corporation of the County of Lambton

Respondent

INTERIM DECISION

Adjudicator: Bruce Best Date: March 22, 2016 Citation: 2016 HRTO 366 Indexed as: Nickson v. Lambton (County)

WRITTEN SUBMISSIONS

Shelley Nickson, Applicant Self-represented

The Corporation of the County of Lambton, Respondent David Cribbs, Counsel

1This Application alleges discrimination with respect to employment because of disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application was filed on January 10, 2014.

2The primarily allegations are that the applicant requested accommodations in the workplace on October 15, 2012, that the accommodations were refused, and she was placed on a short-term disability leave. Following an intervention from her union, there was a subsequent attempt to return her to work with accommodations as of January 8, 2013, but according to the applicant, she was then subject to harassment and/or a poisoned work environment, and was forced by the respondent to take a disability leave as of January 11, 2013.

3The Response was filed on April 30, 2014. The respondent sought to have some or all of the allegations dismissed as they had been dealt with in a grievance which was settled on January 7, 2013. The respondent provided a copy of the settlement, but not the grievance itself.

4The respondent further sought to defer the Application pending the completion of several other grievances, filed in September 2013, that were still ongoing. Those other grievances were settled the week after the Response was filed, on May 8, 2014. On June 9, 2014, the respondent provided a copy of the minutes of settlement from those grievances to the Tribunal.

5Unfortunately, the June 9, 2014 correspondence from the respondent was overlooked by the Tribunal, and on July 17, 2014, the Tribunal issued a letter deferring the Application pending the completion of the grievance proceedings. Neither party contacted the Tribunal to advise that the deferral may have been granted in error.

6On December 31, 2015, the Tribunal sent a letter to the parties inquiring as to the status of the grievances. The applicant then filed a Request to reactivate the Application, noting that she was not involved in any grievances and that she did not understand why her file had been deferred. The respondent filed a Response to the Request, objecting to the matter being reactivated as almost two years had passed, arguing that the applicant has not provided a good faith or reasonable explanation for the delay, and that reactivating the matter at this point would cause it substantial prejudice.

DECISION

7The Tribunal is obliged to ensure that it applies its Rules in a manner that promotes the fair, just and expeditious resolution of disputes on their merits. Subsection 43(2)1 of the Code provides further that the Tribunal may not dispose of an application within its jurisdiction without affording the parties an opportunity to make oral submissions. In my view, it would be neither fair, nor just, nor in accordance with s.43(2)1 of the Code to dispose of this Application because the applicant did not comply with Rule 14.4 when the Application should never have been deferred in the first place. The Application is, therefore, reactivated.

Next Steps

8Both parties have also agreed to attempt mediation to resolve this matter. The Registrar will, in the circumstances, schedule a mediation.

9As noted above, the respondent is also seeking to have some or all of the allegations dismissed as being out of time or as having been addressed in one of the previous grievances. The respondent also raised the issue of prejudice should the matter proceed to a hearing after a lengthy delay.

10The Tribunal will address these issues should the parties not be able to resolve this matter in the mediation process.

11I am not seized.