Garratt v. Georgian Bay General Hospital, 2017 HRTO 1215

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gregory Garratt

Applicant

-and-

Georgian Bay General Hospital

Respondent

DECISION

Adjudicator: Jennifer Khurana

Date: September 18, 2017

Citation: 2017 HRTO 1215

Indexed as: Garratt v. Georgian Bay General Hospital

APPEARANCES

Gregory Garratt, Applicant

Robert (Jim) Richardson, Counsel

Georgian Bay General Hospital, Respondent

Andrew Zabrovsky, Counsel

Service Employees International Union, Local 1 Canada, Affected Party

Dennis Ellickson, Counsel

1This Decision determines the applicant’s request to reactivate his deferred Application.

2For the reasons that follow, the request is denied and the Application is dismissed.

BACKGROUND

3The applicant filed an Application under s.34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) on July 2, 2013. In Interim Decision 2013 HRTO 1658 the Tribunal deferred the Application pending the conclusion of a related grievance arbitration.

4On July 20, 2016 the applicant filed a Request for an Order During Proceedings (“Request”) seeking to reactivate the Application. In his Request the applicant indicates that the grievance with his employer was resolved as of May 15, 2016. The applicant asked that his Request be determined at an in-person hearing because “complicated issues and presentation of evidence requires a personal hearing”.

5The respondent and the affected party, the Service Employees International Union, Local 1 (the “Union”) filed responses opposing the Request on the grounds that it is untimely. They submit that the applicant’s grievance was withdrawn by his bargaining agent on April 1, 2016. The Union provided copies of correspondence between the applicant and his Union representative, including a copy of the April 1, 2016 email in which the Union advises the applicant that his grievance has been withdrawn. The respondents asked that the Request be determined in writing.

6By way of Case Assessment Direction (“CAD”) issued on September 27, 2016, the Tribunal directed that a half-day telephone conference call hearing be held to provide the parties with an opportunity to make oral submissions on the applicant’s Request.

7The telephone conference call hearing was held on September 7, 2017. All parties participated and made submissions.

Role of the Union

8The applicant’s bargaining agent, the Service Employees International Union Local 1 Canada (the “Union”) appears to have been incorrectly listed by the Tribunal as a respondent in the style of cause in the CAD. The Union was not named as a respondent to this Application and did not seek intervenor status. It is an affected party only and accordingly, has been removed as a respondent from the style of cause.

DECISION

9The request to reactivate the Application is denied.

10Rule 14.4 reads as follows:

Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.

11The applicant made a number of arguments at the hearing with respect to the timing of his Request and in support of his position that the Application should be reactivated, none of which were included in his Request. On the one hand the applicant appears to claim that his Request is not untimely, or if so, only by a day or two. He disputes the date that the grievance process concluded, arguing that he did not receive notice of the withdrawal of his grievance until his lawyer was advised nearly a month and a half after the Union withdrew the grievance. He suggests that the 60-day time limit set out in the Tribunal’s Rules should begin as of May 15 or May 17, 2016 when he sent an email advising that he was not proceeding with the grievance. The applicant’s position is that the Union could not unilaterally withdraw the grievance without his involvement or consent.

12On the other hand, the applicant appears to acknowledge that he did receive notice of the Union’s withdrawal of the grievance on April 1, 2016 but that he had a “good faith” reason for not filing a timely request to reactivate either because he was not able to appreciate the consequences of the conclusion of that process or because he was recovering from a serious injury. He submits that the Union was under an obligation to inform his lawyer directly and also should have told him about the 60-day time limit under the Tribunal’s Rules.

13Notwithstanding their position that the applicant retains no authority with respect to the withdrawal of the grievance, the respondent and the Union submit that correspondence between the Union and the applicant establishes that the grievance was withdrawn as of April 1, 2016 and the applicant was informed of the withdrawal on the same date. In their view, the 60-day time limit for requesting reactivation of the Application began as of that date, and the Request is clearly out of time.

14The respondent submits that it is not the Union’s obligation to advise the applicant of the deadlines set out in the Tribunal’s Rules, and that the Union was not the applicant’s representative in his Application before the Tribunal. In any event, the respondent notes that the Tribunal advised the applicant on more than one occasion of the process for bringing back an Application after the conclusion of the other proceeding. In response to the applicant’s argument that the Union was obligated to notify his legal representative from the time he was retained, the respondent submits that the applicant’s position assumes that he has a say with respect to the Union’s withdrawal of the grievance. Finally, the respondent submits that it would be significantly prejudiced by the applicant’s failure to request a timely Request.

15The Union’s submissions in large part mirrored those of the respondent. In addition, the Union noted that it was under no obligation to deal with the applicant’s legal representative, and that the Union communicated with the applicant in writing, as per his request. The Union’s position is that there were a number of communications and exchanges between the applicant and the Union and that the withdrawal of the grievance as of April 1, 2016 was clear and unequivocal and not subject to any other interpretation by the applicant.

16I agree with the respondent and the Union in all respects. First, I find that the grievance proceeding concluded on April 1, 2016. Beyond the fact that I do not accept the applicant’s position that the Union did not have the authority to withdraw the grievance without his consent or participation, the applicant has failed to present any evidence to support his claim that he withdrew his grievance on or around May 17, 2016.

17The applicant’s July 20, 2016 Request is therefore untimely, and was filed almost two months after the 60-day maximum for requests to reactivate set out in the Tribunal’s Rules.

18Having found that the applicant’s Request was untimely, I now turn to whether this is an appropriate case in which to exercise my discretion to relieve against the strict application of the Tribunal’s time limits.

19The respondent relies on a number of authorities in support of its position that the Application should be dismissed and that this is not an appropriate case to vary the timelines set out in the Tribunal’s Rules.

20The Tribunal has stated that the principles to apply in extending the time limit for requesting reactivation should be similar to those applied regarding the time limit for filing applications under section 34 of the Code. In Marc-Ali v. Graham, 2012 HRTO 502, the Tribunal held as follows at paras 19 and 20:

The Rules require that a reactivation request be filed within 60 days of the conclusion of the other proceeding. The Tribunal has the discretion to vary time limits set out in its Rules “to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matter before it” (Rule 1.1). In Baker v. Kingston Hospital, 2009 HRTO 2079 (“Baker”), at para. 6, the Tribunal stated that there “must be a good reason” to waive the time limits set out in the Rules. In addition, the length of the delay may be a factor in determining the appropriateness of extending the time limit. See, for example, Vonella v. Blake Jarrett and Company, 2010 HRTO 2158 (“Vonella”), where the delay was only two days.

The principles to apply in extending time limits under the Rules should be similar to the principles established under section 34 of the Code: has the delay in meeting the time limits in the Rules been incurred in good faith (in Baker, this requirement was worded slightly differently, but I see no significant difference between “good faith” and “a good reason”); and will any substantial prejudice to the respondents result from extending the time limit. The length of the delay is a factor in assessing the potential prejudice to the respondents. In addition, the Tribunal should be mindful of Rule 1.1 which sets out the need to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of an application.

21I do not find that it is appropriate to waive or vary the timelines set out in Rule 14.4. I am not persuaded that the justifications cited by the applicant constitute a “good faith” reason for the delay in filing his Request.

22Counsel for the applicant argued at the hearing that the consequences of the Union’s withdrawal did not register for the applicant when he received the April 1, 2016 email. Yet the applicant did not present any evidence in support of his claim that he could not appreciate or understand the Tribunal’s Rules, or that he was not in a position to file his Request in a timely way at the relevant time. Rather, as the Union submitted at the hearing, I find that the email exchange between the applicant and his Union representative around the relevant time suggests that the applicant was well aware of the withdrawal of the grievance and that he was cognisant enough to advise the Union that he had retained counsel and to explain his preferences for communication.

23In an email dated March 22, 2016 the applicant wrote to Union representative Joe Buote: “Since I have turned this over to a firm, I think that at this time all communication should be in writing or through him. His name is Jim Richardson and is copied on the email”.

24On April 1, 2016, Joe Buote responded to the applicant’s email and wrote as follows:

Hey Greg, Brian says you were expecting me to call you but since you sent me this email I was respecting your wishes below. I have not wanted to bother you while you are off work either. However seeing that you have told Brian your [sic] awaiting a response it is my preference and our policy to deal directly with the member with grievances. We have talked about providing proof of denial of accommodation in the past among other things. At this time we just wanted to inform you that we are withdrawing the grievance. This does not suggest that if evidence comes forward of a denial that we will not pursue that accommodation in the future. If you do get denied and have the supporting documentations that an accommodation is needed where you need shifts moved please ensure you contact Brian.

25On April 1, 2016, Union representative Brian Kelly wrote the following email to the applicant: “Greg, based on this and our conversation yesterday I am going to advise GBGH that we are withdrawing this grievance without prejudice. If in future they deny you accommodation as stated in this grievance we can file a new grievance”.

26I also do not find any basis for the applicant’s claim that the Union was obligated to advise his legal representative directly about the withdrawal of the grievance and that the Union’s failure to do so somehow justifies an untimely Request. The applicant was informed that the grievance process had concluded as of April 1, 2016 and appears to even have had oral communications with the Union prior to the written notification being sent by both Brian Kelly and Joe Buote by email. If the applicant intended to reactivate his Request, it was his responsibility to do so in a timely manner. Further, the applicant’s March 22, 2016 request to the Union that its communications either be sent directly to his legal representative or be in writing was granted, as Mr. Buote’s April 1, 2016 email makes clear.

27It was also not up to the Union to advise the applicant of the deadlines under the Tribunal’s Rules for the reactivation of the Application. The applicant was informed of the process for reactivating a deferred application well in advance of the withdrawal of the grievance, both prior to his retention of counsel, and afterwards. The Tribunal drew the applicant’s attention to Rules 14.3 and 14.4 four times. Paragraph [11] of the Tribunal’s Interim Decision 2013 HRTO 1658 deferring the matter to the grievance proceeding addressed these Rules, as did the Tribunal’s July 11, 2014 request for a status update, and its letter dated July 22, 2014 in which it confirmed that the Application remained deferred pending the completion of the grievance process. Finally, the Tribunal wrote to the applicant as recently as February 17, 2016 requesting a status update and again drew the applicant’s attention to Rules 14.3 and 14.4 for the fourth time.

28In Roles v. Windsor-Essex Children’s Aid Society, 2017 HRTO 269, the applicant denied receiving the Tribunal’s correspondence and claimed that the Tribunal did not tell her about the 60-day time limit for requesting reactivation. The Tribunal rejected the applicant’s arguments and found that the Tribunal had in fact advised the applicant of the Tribunal’s Rules in its communications. It did not find the explanations offered by the applicant to constitute a good faith reason for not complying with Rule 14.4

29To the extent that the applicant claims that the Union has failed him in its role as a bargaining agent, I agree with the respondent and the Union that this is an issue he could have raised in another forum and with the Ontario Labour Relations Board. The applicant’s dispute with his bargaining agent does not relieve him of the responsibility to file a timely request to reactivate his Application.

30In light of my finding that the applicant has not presented a good faith reason for his delay, I need not deal with the issue of prejudice to the respondent. See, for example, Dacosta v. ORLICK Industries Limited, 2014 HRTO 1738 at para.15.

Applicant’s Request To Testify

31Paragraph [8] of the Tribunal’s September 27, 2016 CAD directed the parties to deliver to each other and file with the Tribunal copies of any written materials or documents that they wished to rely on at the teleconference hearing. The parties were also directed to deliver and file a witness list, including a summary of their witnesses’ expected evidence, no later than 35 days after the date of the CAD. The CAD advised that if a party indicated that it intended to call one or more witnesses, the Tribunal may direct that the conference call be converted to an in-person hearing.

32At the outset of the telephone hearing I confirmed with the parties the materials they filed. In particular, I confirmed that I had received authorities from the respondent but had not received any other hearing documents or summaries of intended evidence from the applicant. Counsel for the applicant confirmed that he would only be making oral submissions and was not proposing to call any viva voce evidence.

33At the end of the hearing, after all participants had made oral submissions about the Request, the applicant and his legal representative proposed that the applicant be permitted to testify about his injuries or any health issues he had been experiencing at the time the Union advised him that the grievance had been withdrawn.

34Both the respondent and the Union strongly objected to the applicant providing evidence at this stage of the hearing.

35I did not permit the applicant to testify at the end of the hearing. The parties were directed close to a year ago to comply with the Tribunal’s timelines for delivery and submission of materials on which they hoped to rely at the hearing and about their need to submit witness lists and summaries of intended evidence. While I may have permitted the applicant to limit his testimony to what was contained in his Request, the applicant did not make any mention in his Request about health issues or any good faith reason that prevented him from filing his Request in a timely manner. Rather, the applicant simply requested reactivation and indicated May 15, 2016 as the date his grievance was resolved, which he subsequently changed to May 17, 2016 at the hearing. Finally, the applicant is represented by counsel, who requested an in-person hearing when he filed the Request because it involves “complicated issues and presentation of evidence requires a personal hearing”. The applicant did not comply with the Tribunal’s direction to advise the respondent and the Tribunal of his intention to call the applicant as a witness. The respondent would be prejudiced by allowing the applicant to present viva voce evidence in this manner and as I noted at the hearing, the applicant failed to present any reason why he did not file a witness statement in accordance with the CAD or even suggest that he intended to testify at the telephone hearing.

ORDER

36The Tribunal orders as follows:

a. The Request is denied;

b. The Application is dismissed.