Frank Czajkowski v. City of Hamilton, 2017 HRTO 924

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Frank Czajkowski

Applicant

-and-

City of Hamilton

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: July 21, 2017

Citation: 2017 HRTO 924

Indexed as: Czajkowski v. Hamilton (City)

APPEARANCES

Frank Czajkowski, Applicant

Self-represented

City of Hamilton, Respondent

Daryn Jeffries, Counsel

Introduction

1This Decision explains why the Tribunal is dismissing this Application, filed on April 4, 2013, which alleges reprisal and 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”).

background

2By way of background, the applicant worked for the respondent. He received WSIB benefits and was off work for a period of time, and had some work restrictions when he returned to work. In 2012, the applicant refused a work assignment because he alleged it did not accord with his restrictions. The respondent disagreed and discipline ensued, which included a work suspension. In addition, the respondent alleged the applicant had unauthorized absences from work and failed to return to work when suitable work was available, which also resulted in work suspensions.

3The applicant alleges he lost pay from April 3 to May 11, 2012, and another 5 days of pay because of a June 5, 2012 suspension.

4By way of Interim Decision, 2013 HRTO 880, dated May 22, 2013, the Tribunal deferred the Application pending the conclusion of outstanding grievances. The applicant’s union filed two grievances, dated June 12, 2013. The first alleged that the respondent employer did not act in accordance with the Code and sought “lost seniority and wages or other loss of benefits” and accommodation for the applicant. The second alleged that the employer violated the “Discipline” article of the collective agreement, that the applicant’s supervisor “sent [him] home and told him not to come back until he could do the job” and sought an award of lost seniority and wages or other lost benefits, as well as accommodation for the applicant.

5The applicant now wants the Tribunal to reactivate the Application. The arbitrator issued his decision on February 25, 2016.

6The respondent objected to the reactivation request and alleged that the applicant missed the deadline to request reactivation, in addition to which the grievances had already dealt with the allegations set out in the Application.

7By Case Assessment Direction, dated January 26, 2017, the Tribunal directed that a preliminary hearing take place to decide:

a. whether the Application should be reactivated; and

b. whether the Application should be dismissed, in whole or in part, on the basis that another proceeding has appropriately dealt with the substance of the Application.

8A preliminary hearing took place by teleconference call on July 4, 2017, and this is my decision.

parties’ submissions

Reactivation

9The parties made both written and oral submissions.

10On June 7, 2016, the Tribunal received a letter dated April 27, 2016 from the applicant’s (now former) representative indicating his arbitration against the respondent was finished, that it had not resolved his human rights issues, and that he wished to proceed with his Application.

11The Tribunal issued a Registrar’s letter, dated June 8, 2016, confirming receipt of the applicant’s representative’s correspondence on June 7, 2016 and directing the applicant`s attention to Rules 14.3 and 14.4 of the Rules of Procedure (“Rules”), which outline the procedure to follow to request that that Application be reactivated after the other proceeding concludes.

12The applicant’s representative delivered to the Tribunal a copy of the arbitrator’s decision which was received on June 29, 2016.

13On January 11, 2017, the applicant himself filed a Request for an Order During Proceedings (“RFOP”) requesting the consolidation of applications. In light of the earlier correspondence and the absence of another application, the Tribunal assumed the applicant’s RFOP was a request to reactivate the Application. A week later, the applicant advised the Tribunal he was no longer represented.

14The respondent objects to the untimely request for reactivation. The respondent argues that Rules 14.3 and 14.4 state that a request to reactivate must be made in the form of a RFOP filed no later than 60 days after the conclusion of the other proceeding and must set out the date of the conclusion of the other legal proceeding and include a copy of the decision. The respondent filed with its objection the February 25, 2016 Arbitration Decision between the City of Hamilton and the Canadian Union of Public Employees Local 5167 that addresses the applicant’s grievances.

15The applicant made oral submissions in the preliminary hearing by teleconference. He submitted his former representative filed the request to reactivate late and he was not certain why, but thought it was because his former representative did not want to go down this road. The applicant submitted he had tried to contact his former representative by email, but he did not respond.

16He submitted that it seemed that his representative did not want to help him after receiving the arbitrator’s decision, even though he helped him file the Application initially, but his former representative did not tell him he did not want to help him. Ultimately, the applicant assumed carriage of the matter himself.

17The applicant further submitted that because he has a WSIB appeal, he thought the Tribunal would reactivate the Application and then defer it again.

18The respondent for its part submitted that the applicant was on notice that he had to request reactivation within 60 days after the conclusion of the grievance proceeding, which would have been by April 25, 2016.

19Neither the applicant nor his representative contacted the Tribunal before June 7, 2016, and by then the request already was out of time. Even at that time, the applicant’s request was not made by RFOP, as required. The respondent submitted that the Tribunal promptly, on June 8, 2016, reminded the representative that the request to reactivate had to be in accordance with Rules 14.3 and 14.4.

20The respondent submitted that although the applicant stated he tried to email his representative but did not get a response, the applicant had a representative and he was obliged to comply with the Rules. However, neither the applicant’s representative at the time nor the applicant filed an RFOP, as required.

21Finally, the respondent submitted that even given the Tribunal’s liberal interpretation of the applicant’s January 11, 2017 RFOP as a request to reactivate, the request came more than 10 months after the conclusion of the other proceeding, and more than 7 months after the Tribunal’s June 8, 2016 direction to the applicant’s representative.

22The respondent argued that the applicant has not provided a good reason, or any reason at all, for the lengthy delay in filing his request. The respondent submitted the applicant received repeated warnings during the deferral about his obligation to request reactivation in a timely manner, but then ignored the Tribunal’s June 8, 2016 letter.

23The respondent took issue with the applicant’s submission that the Application should be deferred again because he has an outstanding WSIB appeal. The respondent submitted it has nothing to do with the issues in this Application.

legal principles

24Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure state:

14.3 Where a party wishes the Tribunal to proceed with an Application which has been deferred the request must be made in accordance with Rule 19.

14.4 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.

25Rule 19 states in part:

19.1 A party may request that the Tribunal make an order at any time during a proceeding by […] by written request.

19.2 Where a request is made in writing, it must be made in Form 10, Request for Order during Proceedings (“Request for Order”) and must be delivered to all parties and any person or organization who may have an interest in the request and filed with the Tribunal.

decision and analysis

26The applicant’s grievance proceeding concluded when the arbitrator issued his February 25, 2016 decision.

27The applicant’s representative’s letter advising the Tribunal that the applicant wished to reactivate his Application was dated April 27, 2016, but not received by the Tribunal until June 7, 2016. In addition, it was not in the form required by Rules 14.3 and 19, despite the Tribunal’s advice to the parties about the process for reactivating an Application.

28In addition, even though the Tribunal responded to the letter from the applicant’s representative dated June 7, 2016 the very next day and reminded him of the process by which to request reactivation, neither he nor the applicant took any steps to comply. Even when the applicant finally filed an RFOP, dated January 11, 2017, it was almost six months after the Tribunal’s letter, and even then it did not ask for reactivation, but for consolidation. By that time it was more than 10 months after the date of the arbitration decision.

29While 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), the Tribunal specifically discussed in Marc-Ali v. Graham, 2012 HRTO 502, on what basis the time limit for reactivating a deferred Application might be extended if there was “good reason” to relieve against the time limits, namely whether the delay in meeting the time limits was incurred in good faith and whether any substantial prejudice would result if the time limit was extended. The factors to be applied are the same as those employed under section 34(2) of the Code to determine whether the Tribunal has jurisdiction to deal with an otherwise untimely Application.

30The applicant in this case provided no good faith reason why the request to reactivate was filed late. The fact that he tried to get hold of his representative and was not able to do so does not explain why the applicant did not take steps to comply with the Tribunal’s Rules, of which he had been made aware more than once, and does not constitute a good faith reason. In addition, the fact is that even later when the applicant filed an RFOP, he did not file an RFOP requesting reactivation.

31Considering the delay and the absence of a good, or good faith, reason provided by the applicant for the delay it is my view that it would not be appropriate to waive or vary the application of the timeline set out in Rule 14.4 of the Tribunal’s Rules.

32Given my finding with respect to the untimeliness of the applicant’s request to reactivate the Application, I need not deal with the further issues of whether the Application should be dismissed pursuant to section 45.1 of the Code on the basis that the substance of the Application was already appropriately dealt with in the grievance proceeding.

order

33The Application is dismissed.