CITATION: Mihundukulasuriya v.Human Rights Tribunal of Ontario, 2022 ONSC 4623
DIVISIONAL COURT FILE NO.: 027/22
DATE: 20220823
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
LAKSAMAN FERNANDO
Mr Mihundukulasuriya, self-represented
MIHUNDUKULASURIYA
Applicant
– and –
HUMAN RIGHTS TRIBUNAL OF
ONTARIO et al.[^1]
Respondents
In Chambers, In Writing
REASONS FOR DECISION
D.L. Corbett J.
[1] The applicant seeks judicial review of a decision of the Human Rights Tribunal of Ontario dated October 26, 2016 (2016 HRTO 1388), dismissing his complaint under the Human Rights Code that his employer, Aramark Canada Inc., discriminated against him when it reclassified his position from “cook” to “pizza maker” in 2013.
[2] The applicant sought to commence the application for judicial review in this court on January 12, 2022, more than five years after the decision of the HRTO.
[3] Divisional Court staff requested an explanation for the apparent untimeliness of the application, to which the applicant responded as follows:
Thank you for the mail "Below" Yes, it is long time ago that HRTO decision came. But I saw in the Divisional court website if Divisional court Judge can allow it for situational discretion. I was suffering from major depression and anxiety and adjustment disorder that time and everything was ups and down in my life due to a poisoned work place and disability job dismissal. I thought maybe Divisional court give me an opportunity to procced my HRTO file which dismissed without any accommodation or accessibility to proceed with my file. I humbly request from divisional court to give me an opportunity to proceed with my HRTO neglect my 2014 file and find out the unfair decision.
[4] By direction sent January 13, 2022, this court directed the applicant to explain as follows:
The applicant seeks to commence an application for judicial review of a decision of the Human Rights Tribunal dismissing a claim against his former employer. The HRTO decision was rendered in 2016.
This application is brought more than five years after the decision below. The applicant is out of time to bring it. He is asked to explain - briefly - why he says the time should be extended to review a decision made back in 2016.
[5] The applicant did not respond to this direction.
[6] The applicant also sought to commence an application for judicial review from decisions of the Ontario Labour Relations Board respecting claims under the Employment Standards Act and against his union for alleged breach of the duty of fair representation. The OLRB proceedings were decided in 2015, and the applicant sought to commence his application for judicial review in 2022. This court issued a notice pursuant to R.2.1 on the basis that the time to seek judicial review had long expired. The applicant provided two responses to this notice, after which this court dismissed the application for judicial review pursuant to R.2.1: 2022 ONSC 4563.
[7] I assess the intended application for judicial review of the 2016 decision of the HRTO on the basis of the applicant’s answer to the notice under R.2.1 in the intended application for judicial review of the OLRB decision, combined with his supporting materials provided with his documents respecting review of the HRTO decision. I infer that the applicant was responding to this court’s queries on both matters when he provided his response in the OLRB proceedings: the concerns are the same, the proceedings arise from the same facts, and the self-represented applicant could reasonably have understood that his answer in the OLRB review proceedings would be considered in respect to the HRTO review proceedings. Therefore, rather than dismissing the application to review the HRTO proceedings for failure to respond to case management directions, I assess it on the merits pursuant to R.2.1.
[8] The history of the applicant’s multiple proceedings arising from his employment with Aramark is set out in the R.2.1 decision dismissing the application for judicial review of the OLRB proceedings. I incorporate that history here by reference: 2022 ONSC 4563, paras. 7 - 12.
[9] The applicant’s explanations for the delay in commencing proceedings for judicial review are set out in the R.2.1 decision dismissing the application for judicial review of the OLRB proceedings. I incorporate those explanations here by reference: 2022 ONSC 4563, paras. 4 - 6. In addition, in his emails to the court supporting his application for judicial review of the HRTO decision, the applicant states that he had “forgotten” about the 2014 HRTO file, and that he had remembered additional facts concerning the 2014 HRTO file that had eluded his recollection for the prior eight years.
[10] The assertion that the applicant had “forgotten” about the decision dismissing the 2014 file is traduced by the overall litigation history, as explained in 2022 ONSC 4563, paras. 16 – 18. The additional allegation – that the applicant has recently recalled events from more than eight years ago that he had forgotten, by reason of disability, is so incredible as to be unworthy of the litigation process, for the following reasons:
(a) none of the medical evidence provided by the applicant comes close to supporting such episodic recall of remote events;
(b) no particulars have been provided of recently recalled past events;
(c) no steps have been taken by the applicant to seek to re-open proceedings below to adduce fresh evidence.
(d) precisely the same allegations have been dismissed summarily by the HRTO in its decision refusing to re-open long-dormant proceedings before that tribunal.
(e) The impugned decision of the HRTO considered the totality of circumstances surrounding the reclassification of the applicant’s employment in 2013, including the reclassification of other employees at the same time. There is no basis to suppose that any fresh recollections of the applicant, assuming they were accepted as reliable, would affect the overall assessment of the evidence.
[11] The allegation in the applicant’s email responding to staff’s initial inquiry suggests that the applicant alleges that the HRTO failed to accommodate him in the process leading to dismissal. There are no particulars to support this allegation, there is nothing apparent on the face of the HRTO decision that could give rise to such an allegation, and it is apparent from the HRTO decision that there was a hearing into the matter, the applicant was given an opportunity to present evidence and argument, and the applicant’s allegations were considered on their merits. A bald assertion of unfairness cannot ground a claim for relief in this court.
[12] The applicant is self-represented. He is also disabled as a result of mental illness, a fact accepted by the WSIAT and addressed in detail in its decision. This court is obliged to take reasonable steps to accommodate the applicant’s disability and to facilitate his access to justice. But these obligations do not extend to wasting court resources on endless proceedings to the point of ignoring the principle of finality in litigation.
[13] The applicant has been consistently pursuing multiple proceedings before multiple administrative tribunals in connection with events leading to the termination of his employment with Aramark. Seeking to re-open a decision rendered over five years ago on the basis of a vague allegation that the applicant has remembered new events does not come close to establishing a basis for a motion for an extension of time. The application is dismissed pursuant to R.2.1 without costs.
___________________________ D.L. Corbett J.
Released: August 23, 2022
CITATION: Mihundukulasuriya v. Aramark Food Services Ltd., 2022 ONSC 4563
DIVISIONAL COURT FILE NO.: 079/22
DATE: 20220812
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
BETWEEN:
LAKSAMAN FERNANDO
MIHUNDUKULASURIYA
Applicant
– and –
ARAMARK FOOD SERVICES LTD., ONTARIO LABOUR RELATIONS BOARD and UNION UNITEHERE LOCAL 75 TORONTO
Respondents
REASONS FOR DECISION
D.L. Corbett J.
Released: August 23, 2022
[^1]: The applicant has not delivered a proper notice of application. He has included persons who do not appear to have been parties to the 2014 HRTO proceedings – the only proper respondents are the respondent below – Aramark Canada Limited and the HRTO. However, since this matter is being addressed pursuant to R.2.1 on other grounds, I have not felt it necessary to address this issue in this case with the applicant and the respondents.