CITATION: Pereira v. Hamilton Police Services Board, 2022 ONSC 4150

DIVISIONAL COURT FILE NO.: 687/21

DATE: 2022/07/20

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Emery and Nieckarz JJ.

BETWEEN:

HELENA PEREIRA

Applicant

– and –

HAMILTON POLICE SERVICES BOARD and THE HUMAN RIGHTS TRIBUNAL OF ONTARIO

Respondents

Megan Evans Maxwell and Jo-Ann Seamon, for the Applicant

Elisha Jamieson-Davies and Anoushka Zachariah, for the Respondent, Hamilton Police Services Board

Brian A. Blumenthal, for the Respondent, the Human Rights Tribunal of Ontario

HEARD at Hamilton by videoconference: June 6, 2022

H. SACHS J.

Overview

1From 2013 to 2018, the Applicant, Helena Pereira, pursued an application under the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”) against her employer, the Respondent, the Hamilton Police Services Board (the “Board”). The application was deferred for four years while the parties were involved in other proceedings. Upon completion of those proceedings, Ms. Pereira sought reactivation of her application under the Code. This request was made 40 days late. In support of her request, Ms. Pereira filed an affidavit from her counsel who deposed that the required time limit for the reactivation request had been missed due to inadvertence of counsel.

2The Human Rights Tribunal of Ontario (the “Tribunal”) held a preliminary hearing to determine whether to exercise its discretion to allow the late request. The only evidence before the Tribunal was the unchallenged affidavit from Ms. Pereira’s former counsel as to the inadvertence. The Tribunal denied the request, finding that Ms. Pereira had not provided a good faith explanation for her delay. In view of this, the Tribunal decided that there was no need to consider the issue of prejudice. Ms. Pereira’s request that the Tribunal reconsider its decision was denied.

3In coming to its conclusion, the Tribunal applied the statutory test for late original applications set out in s. 34(2) of the Code. Under s. 34 of the Code a person who believes that their rights have been infringed may apply to the Tribunal for relief within one year of the incident to which the application relates. Section 34(2) provides that the time limit may be extended 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.”

4Rule 14 of the Tribunal’s Rules of Procedure (“Rules”) gives the Tribunal discretion to defer the consideration of an application. Rule 14.4 provides that where an application was deferred pending the outcome of another proceeding, a request to reactivate the application must be made within 60 days of the conclusion of the other proceeding. Rule 1.7 provides that “[in] order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may: a. lengthen or shorten any time limit in these Rules”.

5The Applicant seeks judicial review of the Tribunal’s decision to deny her request for reactivation. She does so on the basis that the Tribunal unreasonably applied the test under s. 34(2) of the Code instead of the much broader test under Rule 1.7 of the Tribunal’s Rules.

6For the reasons that follow I find that the Tribunal’s decisions were unreasonable. The decisions under review cannot be justified on the basis of the facts or the law before the Tribunal. In the face of the comparatively short length of the delay and the uncontested evidence of counsel inadvertence, it was unreasonable for the Tribunal not to consider the issue of prejudice before reaching its decision. Without doing so it could not reasonably make a determination as to the fairness and justice of the request to reactivate.

7The Tribunal justified its decision on the basis of a 2012 decision of the Tribunal known as Marc-Ali v. Graham, 2012 HRTO 502. Marc-Ali does not stand for the proposition that “fair, just and expeditious” in Rule 1.7 should be interpreted in accordance with the wording in s. 34(2) of the Code. In fact, it stands for the opposite proposition that the wording of Rule 1.7 is broader than that of s. 34(2) and must include a consideration of prejudice even if the Tribunal is not satisfied there was a good faith explanation for the delay. This is evident from the result of the decision, allowing the reactivation request even though the Tribunal was not satisfied that there was a good faith explanation for the delay.

8The Tribunal also unreasonably applied the s. 34(2) jurisprudence in finding that even though there was uncontested evidence of solicitor inadvertence, the Tribunal should look behind that explanation to determine whether it constituted a good faith explanation. In coming to this conclusion, the Tribunal acknowledged that there was a body of jurisprudence at the Tribunal that reactivation requests should be granted in cases where there is uncontested evidence of solicitor inadvertence (and the other factors such as the length of the delay and prejudice did not suggest otherwise) but found that that jurisprudence should be ignored because Marc-Ali imported the s. 34(2) jurisprudence into requests for reactivation. Again, this finding is based on a misreading of Marc-Ali.

9I appreciate that in reaching this conclusion, I am overturning a procedural and discretionary decision of a Tribunal to whom the highest degree of deference is owed. However, the decision at issue is one that denies the applicant a right to have the merits of her application determined. Further, it runs contrary to the interpretive legal principles in the Code, which require the Tribunal to “adopt the procedures and practices ... which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications”: Code, s. 40. Further, s. 41 of the Code requires the Tribunal to liberally construe its rules so as to permit it to “facilitate fair, just and expeditious resolutions of the merits of the matters before it.”

Factual Background

10Ms. Pereira is employed by the Board, which is the body responsible for governing the Hamilton Police Service.

11On February 27, 2008, the Applicant commenced a civil action against the Board. That action was settled approximately four and a half years later. As part of the settlement the Applicant executed a full and final release.

12On May 13, 2013, after settling her civil action, the Applicant filed an application with the Tribunal alleging discrimination based on sex, sexual orientation and reprisal. In September of 2013, the Board filed its Response, which included a request to defer the application pending the completion of a related proceedings under the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”). The Response also alleged that a number of the allegations made in the application predated the release the Applicant signed in the civil action. It also alleged that those allegations not barred by the release had no reasonable prospect of success.

13On June 10, 2014, over the objections of the Applicant and Respondent, the Tribunal deferred the application pending the conclusion of the disciplinary proceedings under the PSA. It did not deal with the Board’s other preliminary objections to the application. The proceedings under the PSA concluded on July 31, 2018. During this four-year period, the Tribunal checked with the parties about the status of the proceeding. Each time it did so it reminded the parties of the reactivation procedure under the Rules and the sixty-day time limit contained in the Rules.

14On November 8, 2018, 40 days after the time limit prescribed by the Rules, the Applicant commenced her reactivation request.

15In support of that request the Applicant filed an Affidavit from her solicitor.

16Ms. Pereira’s application to the Tribunal, initiated in 2013, was handled by the Human Rights Legal Support Centre. The Centre did not handle her proceedings under the PSA. The affidavit filed was from a lawyer at the Centre, who deposed that she was assigned Ms. Pereira’s file in the summer of 2018, after a previous lawyer began a leave of absence. At that time Ms. Pereira’s application was still deferred. On August 8, 2018, Ms. Pereira emailed her the Ontario Civilian Police Commission (“OCPC”) decision and told her that she had until August 31, 2018, to decide on a judicial review application with respect to that decision. On September 27, 2018, her lawyer requested an update from Ms. Pereira on her judicial review application. They remained in contact by email and on October 10, 2018, during a file review, the lawyer discovered that she had missed the deadline for reactivation of the Tribunal application. She told Ms. Pereira about this on October 11, 2018, and she began working on the application to extend the time to reactivate as soon as she had discussed her options with colleagues and obtained firm instructions from Ms. Pereira to pursue the reactivation request.

The Tribunal’s Initial Decision on the Reactivation Request

17On March 31, 2021, the Tribunal issued its decision denying Ms. Pereira’s reactivation request. At paragraph 7 of this decision the Tribunal noted that it did have the jurisdiction to lengthen the 60-day limit set by Rule 14.4 for a reactivation request and that it could do so “in order to provide for the fair, just, and expeditious resolution of any matter before it: Rule 1.7a.” It also noted that the Rules are to be “liberally and purposively interpreted and applied and are not to be interpreted in a technical manner”.

18The Tribunal then went on to state that “[t]he Tribunal’s jurisprudence reveals at least two competing views as to the proper test for determining if an extension to the time limit for a re-activation request should be granted.” One view was expressed in Marc-Ali and cases like it and the other in cases such as Hill v. Cotton Inc., 2016 HRTO 1394, which rejected the Marc-Ali approach. On the basis of a principle articulated in Ouwroulis v. New Locomotion, 2009 HRTO 335 (a case involving an applicant who had refused to comply with the Tribunal’s directions), the Tribunal found that the appropriate test to apply was the stricter one that it found was articulated in Marc-Ali – namely, that the delay must be incurred in good faith and that no substantial prejudice will result to the person affected by the delay.

19The Tribunal then asked itself whether the delay at issue was incurred in good faith. In doing so it recognized, as noted earlier, that there were a number of cases where the Tribunal has allowed applicants to reactivate an application after the 60-day deadline when the delay was caused by inadvertence of counsel. However, the Tribunal found that when the request is made in the context of s. 34(b), that general principle did not apply – the Tribunal also had to “consider what actually happened and whether there is evidence of good faith.” According to the Tribunal, while “[i]t is very noble that the applicant’s former counsel was willing to accept the blame for the untimely re-activation request ... the onus is on the applicant to prove that she acted in good faith.”

20The Tribunal found that while the Applicant had proved that she did not act in bad faith, she did not adduce positive evidence that she had acted with due diligence. In making this finding the Tribunal considered the fact that:

• the Tribunal had set out the reactivation deadline in its deferral decision,

• the Applicant was aware of the concept of limitation periods as she told her lawyer about the 30-day deadline to judicially review the OCPC decision,

• she took a week to email a copy of that decision to her lawyer,

• she did not contact her lawyer for seven weeks, and

• while the Applicant was informed of the missed deadline on October 11, 2018, the reactivation request was not filed until November 8, 2018, and since “the submissions [on the reactivation request] are not complicated, it can be inferred that instructions from the applicant were not immediately forthcoming.”

21The Tribunal concluded that, given its finding that a good faith explanation for the delay had not been established, there was no need to deal with the question of prejudice. In the result it dismissed the application.

The Reconsideration Decision

22The Reconsideration Decision was issued on July 28, 2021. The Tribunal found that the Applicant had not met the test for reconsideration – the decision did not go against established jurisprudence and there were no factors that outweighed the public interest in the finality of the Tribunal decision.

Standard of Review

23The Applicant and the Board accept that the standard of review is reasonableness, while the Tribunal argues that it is patent unreasonableness. After the hearing of this application the Court of Appeal released its decision in Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458. The Court found at para. 47, that “Vavilov does not undermine the reasoning in Shaw v. Phipps, which adopted a reasonableness standard of review for determinations of fact, the interpretation and application of human rights law, and remedial decisions.”

24Thus, the applicable standard of review is reasonableness.

Analysis

The Content of the Reasonableness Standard

25There are several principles articulated by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, that are important to consider in analyzing the reasonableness of the decisions under review. In particular:

(a) Reasonableness review requires the court to show restraint. It should not ask itself what it would have done; its focus should instead be on “whether the applicant has demonstrated that the decision is unreasonable” (para. 75).

(b) The focus of a reasonableness review must be on the decision actually made by the decision maker – both its outcome and its reasoning process (para. 83).

(c) “Developing an understanding of the reasoning that led to the administrative decision enables a reviewing court to assess whether the decision as a whole is reasonable ... a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (para. 85).

(d) Reasonableness review is not solely focused on the outcome of the administrative decision under review. A court conducting a reasonableness review must also consider the reasoning process that led to that outcome. An outcome that is based on an unreasonable chain of analysis may be set aside even if it is not unreasonable in the circumstances. “This approach is consistent with the direction in Dunsmuir that judicial review is concerned with both outcome and process. To accept otherwise would undermine, rather than demonstrate respect toward, the institutional role of the administrative decision maker” (paras. 86-87, emphasis in original).

(e) To determine whether a decision is reasonable a reviewing court must ask itself whether the decision as a whole “bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (para. 99). The burden is on the party challenging the decision to demonstrate that it is unreasonable, and this requires demonstrating a flaw or shortcoming that is more than merely superficial or peripheral (para. 100).

(f) The most relevant factual and legal considerations that constrain an administrative decision maker such as the Tribunal include the following:

1. The governing statutory scheme. Decision makers are not permitted to rewrite the law under which they operate. Even where a decision maker has considerable discretion, the decision “must ultimately comply ‘with the rationale and purview of the statutory scheme under which it is adopted’.” “[A] decision must comport with any more specific constraints imposed by the governing legislative scheme, such as the statutory definitions, principles or formulas that prescribe the exercise of a discretion ... The statutory scheme also informs the acceptable approaches to decision making: for example, where a decision maker is given wide discretion, it would be unreasonable for it to fetter that discretion” (para. 108; citations omitted, emphasis added).

2. Other statutory or common law. “[W]here the governing statute specifies a standard that is well known in law and in the jurisprudence, a reasonable decision will generally be one that is consistent with the established understanding of that standard” (para. 111). “Any precedents on the issue before the administrative decision maker or on a similar issue will act as a constraint on what the decision maker can reasonably decide.” However, there may be circumstances in which it would be unreasonable for a tribunal to interpret a statutory provision in accordance with a binding precedent, such as when the precedent adopts an interpretation that is inconsistent with how Canadian courts have interpreted the same issue. A tribunal decision may also be unreasonable if it fails to explain a departure from a binding precedent in which the same provision has been interpreted (para. 112). Administrative tribunals are not necessarily required to apply common law or equitable doctrines in the same manner as the courts – those doctrines may be adapted to the relevant administrative context (para. 113).

3. Principles of statutory interpretation. Whatever form the administrative decision maker’s statutory interpretative exercise takes, “the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision” (para. 120). “The administrative decision maker’s task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue. It cannot adopt an interpretation it knows to be inferior — albeit plausible — merely because the interpretation in question appears to be available and is expedient. The decision maker’s responsibility is to discern meaning and legislative intent, not to ‘reverse-engineer’ a desired outcome” (para. 121).

4. Evidence before the decision-maker. “[A]bsent exceptional circumstances, a reviewing court will not interfere with [an administrative decision maker’s] factual findings” (para. 125).

5. Submissions of the parties. Decision makers do not have to respond to every issue raised by the parties but failing to meaningfully grapple with the key or central issues raised by the parties “may call into question whether the decision maker was actually alert and sensitive to the matter before it” (para. 128).

6. Past practices and past decisions. Administrative decision makers are not bound by stare decisis. “‘[A] lack of unanimity is the price to pay for the decision-making freedom and independence’ given to administrative decision makers, and the mere fact that some conflict exists among an administrative body’s decisions does not threaten the rule of law. Nevertheless, administrative decision makers and reviewing courts alike must be concerned with the general consistency of administrative decisions. Those affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker — expectations that do not evaporate simply because the parties are not before a judge” (para. 129; citations omitted). “As discussed above, it has been argued that correctness review would be required where there is ‘persistent discord’ on questions on law in an administrative body’s decisions. While we are not of the view that such a correctness category is required, we would note that reviewing courts have a role to play in managing the risk of persistently discordant or contradictory legal interpretations within an administrative body’s decisions. When evidence of internal disagreement on legal issues has been put before a reviewing court, the court may find it appropriate to telegraph the existence of an issue in its reasons and encourage the use of internal administrative structures to resolve the disagreement. And if internal disagreement continues, it may become increasingly difficult for the administrative body to justify decisions that serve only to preserve the discord” (para. 132).

7. Impact of the decision on the affected individual. Where the impact of a decision on an affected individual is severe “the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention” (para. 133).

The Decisions Under Review Do Not Comport with the Governing Statutory Scheme

26For ease of reference, I will review that scheme again.

27Rule 14 of the Tribunal’s Rules gives the Tribunal discretion to defer the consideration of an application. Rule 14.4 provides that where an application was deferred pending the outcome of another proceeding, a request to reactivate the application must be made within 60 days of the conclusion of the other proceeding.

28Rule 1.7 provides that “[in] order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may: a. lengthen or shorten any time limit in these Rules”.

29The language of Rule 1.7 is clear – the discretion to lengthen or shorten a time period is to be driven by the need to provide for a “fair, just and expeditious resolution” of the case. The Rule does not limit the factors that may be considered in deciding whether extending or shortening a time limit will provide for a “fair, just and expeditious resolution” of the case. The discretion conferred is a wide one.

30This is in stark contrast to section 34(2) of the Code. Under s. 34 of the Code, a person who believes that their rights have been infringed may apply to the Tribunal for relief within one year of the incident to which the application relates. Section 34(2) provides for that time limit to be extended 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.”

31Section 34(2) specifically limits the discretion that a Tribunal has to lengthen the time limit for making an originating application. It cannot be done unless two hurdles are met – (1) the delay must have been incurred in good faith and (2) no substantial prejudice will result to any person affected by the delay. Since the time period for bringing a Tribunal application is fairly lengthy – one year – this may explain why the Legislature chose to limit the ability to extend this period.

32The Tribunal’s Rules do contain one rule that does expressly limit the discretion of the Tribunal to extend a time limit. Rule 26.5.1 deals with a reconsideration request that is made 30 days after the original decision is granted. Rule 26.5.1 provides that such a request can only be granted if the “Tribunal determines that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.” Rule 26.5.1 is the only Tribunal Rule which expressly mandates the two-fold test of “good faith” and “no substantial prejudice”. Reconsideration requests relate to the narrow capacity of an applicant to challenge a final decision of the Tribunal. Thus, it is not surprising that there would be high threshold for extending the time to bring such an application.

33The Tribunal decided to limit the wide discretion available to it under Rule 14.4 and Rule 1.7 by adopting the test in section 34(2) of the Code. Nothing in the wording of the governing statutory scheme justified this result. In fact, the opposite is the case. As already noted, s. 40 of the Code requires the Tribunal to “adopt the procedures and practices ... which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.” There is also s. 41 of the Code that requires the Tribunal to liberally construe its rules so as to permit it to “facilitate fair, just and expeditious resolutions of the merits of the matters before it.”

34It is not for this court to decide what factors the Tribunal must consider in exercising the broad discretion available to it under rules 14.4 and 1.7. However, as Vavilov has made clear, at para. 108, where the statutory scheme gives a decision maker a wide discretion, it is unreasonable for that decision maker to fetter that discretion without regard for the purpose for which the discretion was given. In this case, the Tribunal fettered its discretion by refusing to even consider prejudice to either party.

35Prejudice is clearly a relevant factor when deciding whether it is fair, just or expeditious to extend a time limit. The Code recognizes prejudice as a factor, as does the common law. At common law many applications for extensions of time limits require the court to consider the “justice of the case”, which always includes considering the prejudice that may result to any party affected by the delay: see, e.g., Philbert v. Graham, 2022 ONCA 122, at paras. 15-16.

36In saying that the Tribunal acted unreasonably in fettering its discretion by refusing to consider prejudice, I am not saying that a finding of no prejudice would necessarily result in the extension of a time limit. Nor am I saying that a finding of prejudice would dictate the opposite result. Exercising discretion in this area requires considering and weighing all relevant factors and then deciding what would best achieve fairness, justice and expeditiousness. If there is no rational justification for refusing to consider a relevant factor, then the proper weighing cannot take place and the decision is not justifiable. Further, this defect is not peripheral, minor or superficial; it is central to the proper exercise of the conferred discretion. It is also worth noting the end result to the Applicant of the decision under review. Her application will never be heard on the merits. Since the rights at play are semi-constitutional, this is a serious consequence.

The Tribunal’s Reliance on Prior Jurisprudence was Not Reasonable

37In reaching its decision the Tribunal relied on the decision in Marc-Ali, particularly para. 20 thereof, which reads:

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, 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.

38In Marc-Ali, the Tribunal was dealing with a reactivation request that was two and half months after the 60-day deadline (almost twice the delay in the case at bar). The applicant’s explanation for the delay was that she was unrepresented until after the deadline had passed and that she was not aware of the deadline. The Tribunal found that “it was not reasonable for the applicant to wait as long as she did to make her Request to Reactivate the Application, in the circumstances” (para. 26). It then went on to note that if this was an application to extend the time limit for an original application under s. 34 of the Code, there would be no need for it to go on to examine the issue of prejudice. However, since it was a case involving timeliness under the Rules, it was necessary for it to go on to consider the issue of prejudice. The Tribunal found that a delay of two and a half months was not long enough to infer prejudice and that no actual prejudice had been demonstrated. Therefore, it allowed the application for an extension.

39It is clear from the result alone that Marc-Ali does not stand as authority for the proposition that the Tribunal in this case took it to say. According to Marc-Ali, even if the explanation for the delay is not reasonable, there is a need to examine prejudice.

40In its Reconsideration Decision the Tribunal attempted to explain its reliance on Marc-Ali by stating that while Marc-Ali contained an inconsistency, paragraph 20 adopted the test outlined in section 34(2) of the Code while other parts of the decision did not.

41First of all, paragraph 20 does not stand for the proposition put forward. It explicitly stated that the Tribunal had to be mindful of Rule 1.1 and the need to ensure a fair, just and expeditious resolution of the merits of the application. Second, it is not a reasonable use of prior jurisprudence to take one paragraph of a case out of context and then not look to the rest of what is said in the case. This especially true in this instance since what was said in the rest of the case makes it clear that the Tribunal was not saying in paragraph 20 that the test to be applied in a reactivation request was the test under section 34 of the Code. Contrary to the findings of the Tribunal in the case at bar, Marc-Ali does not contain an inconsistency; it simply does not stand for the proposition that the Tribunal in this case (and others) says it stood for.

42I appreciate that in Tang v. Human Rights Tribunal, 2021 ONSC 6523, the Divisional Court dismissed an application to judicially review the reactivation request of an applicant where there was a six-month delay and the Tribunal found that there was no explanation for delay. In that case the Tribunal had also refused to consider the issue of prejudice. In Tang (of which I was a sitting member), the Divisional Court relied on the fact that there appeared to be two competing lines of jurisprudence about which test to apply and that was not a sufficient reason for this court to interfere. It did, however, remark that it would be preferable for the Tribunal to reach a measure of unity on the issue.

43Unlike at the time when Tang was decided, it is now clear that one line of cases that has led to the perception that there is a dispute in the Tribunal jurisprudence is based on a fundamental misreading of the decision that forms the foundation for that line of cases. That makes it appropriate for this court to intervene and express an opinion on the reasonableness of the line of cases that is based on paragraph 20 of Marc-Ali. Paragraph 20 of Marc-Ali must be interpreted in light of the case as a whole. If that is done, there is no reasonable basis for relying on paragraph 20 to justify importing the test under s. 34(2) of the Code into an application under Rule 14.4. As Vavilov has pointed out, there may be situations where a reasonableness review requires putting an end to a jurisprudential dispute at the administrative level. Such situations may be rare, but this case is one of them. If a Tribunal applies an unreasonable interpretation in enough cases, they cannot be shielded from reasonableness review by virtue of constituting a differing line of authority.

44The Tribunal in this case also unreasonably relied on the decision in Ouwroulis v. New Locomotion, 2009 HRTO 335, to justify its decision to import the s. 34(2) test into Rule 14.4. Ouwroulis is a case where the applicant had refused to follow the Tribunal’s directions. It has nothing to do with late reactivation requests or the test for such requests articulated in Rule 1 of the Tribunal’s Rules. Its use in this context combined with the out of context use of para. 20 of Marc-Ali and a failure to consider the actual words in Rule 1 raises the spectre of “reverse-engineering” that the Supreme Court in Vavilov warned about in para. 121 of that decision (referred to above).

The Tribunal’s Analysis of the Applicant’s Explanation for the Delay was Unreasonable

45The Tribunal also unreasonably imported the s. 34(2) jurisprudence into its analysis of whether it accepted the Applicant’s explanation for the delay. As mentioned several times, that explanation rested on uncontroverted evidence of solicitor inadvertence. The Tribunal could point to no case where a late reactivation request was rejected where the delay was based on acknowledged and unchallenged solicitor inadvertence. The Applicant provided several cases where the opposite occurred, and the Tribunal acknowledged that line of jurisprudence. It simply rejected it in favour the s. 34(2) jurisprudence, even though the test at issue was not the s. 34(2) test. This was unreasonable.

46I pause to note here that at para. 20 of Marc-Ali, the Tribunal equated “good reason [for the delay]” with “good faith”. In this case it appears that the Tribunal did not do the same. In its view, regardless of the fact that the applicant’s former counsel missed a deadline, the applicant had to prove more to satisfy the test of good faith. As put by the Board in oral submissions, to do otherwise would be to give the Applicant more rights than a self-represented litigant. If the Applicant knew of the 60-day limit, she cannot rely on her counsel’s error as her explanation for the delay.

47This issue was addressed in another Tribunal case dealing with reactivation: A.B. v. Toronto Police Services Board, 2013 HRTO 447. In that case the delay was four months. The Applicant’s request for reactivation was supported by an affidavit from his lawyer, attesting to the fact that the first lawyer on the file was not aware of the 60-day time limit and the error was discovered by a second lawyer who took over the file. The applicant admitted that he was aware of the 60-day time limit. The respondent argued that in view of this the applicant could not rely on his counsel’s error. The Tribunal disagreed and accepted the applicant’s explanation for the delay. In doing so, it stated at para. 49:

Although the applicant was aware of the 60-day time limit, I do not accept the TPSB’s implication that his failure to check whether or not his counsel had taken the requisite steps to reactivate his Application amounted to a lack of due diligence. The applicant retained counsel (who is bound by rules of professional conduct) to provide legal services for him, and I cannot accept he had an obligation to check if his counsel was doing his job properly.

48Thus, to the extent that the Tribunal decision suggests that the applicant had an independent obligation to make sure that her lawyer did not miss the time limit for reactivation, that conclusion is at odds with the decision in A.B. v. Toronto Police Services Board. I say this not because a disagreement with another Tribunal member renders a decision unreasonable, but to illustrate how the improper use of the s. 34(2) jurisprudence may have impacted the Tribunal’s assessment of the applicant’s explanation for the delay.

Remedy

49The Applicant submitted that if the Tribunal’s decision was set aside as unreasonable this court should make its own decision and grant her reactivation request. She does so on the basis that there has already been a considerable delay in this matter and that the result of her request is inevitable.

50I disagree. The result of her request is not inevitable. The Tribunal has a broad discretion to exercise. That discretion involves considering a number of relevant factors, including possibly the merits of her case. As outlined earlier in these reasons, the Board has made a submission that there is no merit to her case. This is not something that we are in a position to determine.

Conclusion

51For these reasons we find that the Tribunal reached its outcome by an unreasonable chain of analysis. Therefore, we order that the Tribunal’s decisions be set aside and that the matter should be remitted to a different member of the Tribunal to reconsider in accordance with these reasons.

52Pursuant to the agreement of the parties, the Board is to pay the Applicant her costs of this application, fixed in the amount of $7,500.00, all inclusive.

H. Sachs J.

I agree _______________________________

Emery J.

I agree _______________________________

Nieckarz J.