CITATION: Laksaman v. Aramark, 2023 ONSC 2040
DIVISIONAL COURT FILE NO.: DC-561-20
DATE: 20230331
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ACJ McWatt, Stewart, Reid JJ.
BETWEEN:
Laksaman Fernando Mihindukulasuriya
Applicant
– and –
Aramark Canada Limited, UNITE HERE Local 75, Oncidium Health Group, Crawford & Company (Canada Inc.), Consiglio Consultant, and the Human Rights Tribunal of Ontario
Respondents
Laksaman Fernando Mihindukulasuriya, Self-Represented
Laura J. Freitag, for the Respondents, Aramark Canada Limited and Crawford & Company (Canada) Inc.
Brian A. Blumenthal, counsel for the Respondent, the Human Rights Tribunal of Ontario
HEARD by videoconference in Toronto: November 16, 2022
REASONS FOR DECISION
Stewart J.
Nature of the Application
[1] The Applicant seeks judicial review of the decision of the Human Rights Tribunal of Ontario (the “HRTO”) dated June 19, 2020 which dismissed his application to reactivate two previous applications made by him to the HRTO in 2015. He also seeks review of the reconsideration decision of the HRTO dated November 17, 2020 that upheld the dismissal of his application.
[2] The Respondents Aramark Canada Limited (“Aramark”) and Crawford & Company (Canada) Inc. submit that both decisions sought to be reviewed are reasonable and should not be interfered with by this Court.
[3] The HRTO takes no position on the merits of the application for judicial review but has filed submissions to ensure that the applicable governing legislation and the HRTO procedures for dealing with the Applicant’s applications for reactivation and reconsideration were before the Court.
Background Facts
[4] In 2007, the Applicant was hired by Aramark as a “cook”, a food services position on a university campus. The Applicant’s employment was governed by a collective agreement between Aramark and UNITE HERE Local 75 (the “Union”). The Applicant was a member of the Union bargaining unit as a result of his employment by Aramark.
[5] Some time after the Applicant started his employment with Aramark, his job title was reclassified as a “cook helper/pizza maker”. The change in his job title appears to have been the product of standard collective bargaining between Aramark and the Union and a resultant re-negotiation of the terms of the collective agreement.
[6] On March 28, 2014 the Applicant filed an application with the HRTO (the “2014 Application”) alleging that the reclassification of his position was due to his race, place of origin, and ethnic origin and therefore was a violation of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). He also alleged that the reclassification was a reprisal for having asserted his rights under the Code.
[7] In February 2015, the Applicant filed a second application and, in October 2015, he filed a third application (the “2015 Applications”).
[8] The 2015 Applications were basically identical to the 2014 Application except that the Applicant named additional respondents.
[9] The HRTO deferred the 2015 Applications pending the disposition of the Applicant’s 2014 Application, as its procedures permit.
[10] On October 26, 2016 and following a hearing on the merits, the 2014 Application was dismissed by the HRTO. In its decision, the HRTO found the majority of the Applicant’s allegations were out of time. It dismissed the Applicant’s remaining allegation of discrimination on the basis that it was not factually linked to any protected ground under the Code.
[11] On April 28, 2017 the Applicant’s request for reconsideration by the HRTO of the October 26, 2016 decision was likewise dismissed.
[12] The Applicant continued to contact the HRTO by email correspondence about matters relating to the decision disposing of his 2014 Application and the HRTO’s reconsideration decision.
[13] In October, 2017 the Applicant filed a request to proceed, seeking to reactivate his second application. In May 2018, he made a further request for the same relief. Further, in October, 2018, the Applicant filed a request to reactivate his third application.
[14] The Respondents Aramark and the Union opposed all requests by the Applicant for reactivation of the 2015 Applications on the basis that these were well out of time. Rule 14.4 of the HRTO Rules of Procedure stipulates that any reactivation request must be made within 60 days of the conclusion of the “other legal proceeding” which, in this case, was the Applicant’s 2014 Application. That application had been concluded on April 28, 2017 by the dismissal of the Applicant’s request for reconsideration.
[15] The HRTO directed that a preliminary hearing be held to determine whether the requests to reactivate should be dismissed as being out of time as the Respondents maintained.
[16] Following that preliminary hearing, the Applicant’s requests for reactivation were dismissed by the HRTO in a decision dated June 19, 2020. In so doing, the HRTO noted that the Applicant had corresponded with the HRTO throughout much of 2017 without any apparent difficulty. In particular, the HRTO found that the Applicant had not been hindered from so doing by any illness or disability.
[17] The Applicant requested a reconsideration by the HRTO of its June 19, 2020 decision. He filed medical documents with the HRTO and submitted that they supported his assertion that he did not understand, and was unable to understand due to his alleged disability, that it was his responsibility to seek to reactivate his 2015 Applications and that therefore they should be allowed to proceed.
[18] The Applicant’s request for reconsideration of its June 19, 2020 decision was dismissed on November 17, 2020.
[19] The Applicant seeks judicial review of both decisions refusing reactivation of his complaints and requests that his Applications in that regard be remitted back to the HRTO for a full hearing on the merits.
Jurisdiction
[20] This court has jurisdiction over this application pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
Standard of Review
[21] The standard of review of both decisions is one of reasonableness. They involve the application of the HRTO’s own Rules to its own process (see: Pereira v. Hamilton Police Services Board, 2022 ONSC 4150; Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458).
Issue
[22] The only issue for consideration by this Court is whether either or both decisions of the HRTO were unreasonable. In particular, did the HRTO fail to consider that the Applicant had provided a good faith explanation for his failure to reactivate his 2015 Applications in a timely manner as required by the HRTO’s Rules of Procedure, did the HRTO fail to take the Applicant’s alleged disability into consideration, or had the HRTO relied on allegedly false information provided by the Respondents?
Law and Discussion
[23] Rule 14.4 of the HRTO’s Rules of Procedure provides 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.
[24] As noted in the HRTO’s decision, it has discretion to lengthen and shorten time limits imposed by its Rules. A person seeking an extension of a time limit must demonstrate (a) that the delay was incurred in good faith; and (b) if there is such an explanation, to show that no party will experience substantial prejudice because of the delay.
[25] This approach has been applied by the HRTO and affirmed on judicial review with respect to the one-year limitation period under section 34(1) of the Human Rights Code as well as in other cases where the HRTO mandated time limits, such as the 60-day deadline to submit a request for reactivation involved here (see: Tang v. Human Rights Tribunal of Ontario, 2021 ONSC 6523 (Div.Ct.)).
[26] In reaching the decision that the Applicant had not provided a reasonable and good faith explanation for the delay, the HRTO considered that the medical documentation tendered by the Applicant did not support his submission that he was suffering from a disability in 2017 that prevented him from requesting reactivation of his 2015 Applications in a timely manner and in compliance with the Rules.
[27] The HRTO’s finding that the Applicant’s submissions and documentation did not adequately demonstrate that he had been unable to launch his reactivation requests within the time limits for doing so is entitled to deference and is grounded in the evidence before it. The finding follows a coherent analysis in relation to the law in respect of disability and is consistent with the handling of delays at the HRTO.
[28] Although the Applicant argues that the decision by the HRTO is improperly discriminatory against him, I see no discriminatory intention or effect. The HRTO simply did not accept that the Applicant’s explanation was convincing when weighed and considered against the other evidence before it.
[29] The Applicant further suggests that the Respondents provided false information in respect of his contacting of the HRTO during 2017. This allegation is raised here for the first time and was not previously raised by the Applicant during the course of this proceeding at the HRTO.
[30] In reaching its decision, in addition to making the finding in respect of the medical evidence set out above, the HRTO relied upon the fact that the Applicant sent it several emails between the dismissal of his 2014 Application on April 28, 2017 and October 12, 2017. Among these, it noted that the Applicant emailed the HRTO on at least 5 occasions in May and June of 2017 in respect of his 2014 Application.
[31] The Respondents did not provide any evidence of the Applicant’s contacting of the HRTO during this period as part of their submissions. Rather, the HRTO independently relied on the correspondence it had received directly from the Applicant in reaching its decision. This reliance was reasonable having regard to the HRTO’s expertise and its adjudicative powers which allow it to employ practices and procedures that offer the most fair, effective and efficient resolution of applications.
[32] The HRTO was therefore in receipt of multiple pieces of correspondence from the Applicant that demonstrated that he was capable of communicating and pursuing his legal rights during the relevant period. None of this information was tendered by the Respondents, nor could it be described as false. Moreover, it was reasonable for the HRTO to consider this evidence.
[33] In my opinion, the HRTO’s decision to dismiss the request to reactivate the deferred 2015 Applications was reasonable. The Applicant failed to reactivate the 2015 Applications within the 60-day time period imposed by the Rules and specified by the HRTO in the deferral notice that had been provided to the Applicant. In its decision, the HRTO found that the Applicant had failed to provide an adequate explanation to demonstrate that the delay was incurred in good faith. Any blame the Applicant may have sought to attach to his then-paralegal either at the time, or following this decision, has no bearing on the merits of that conclusion. Accordingly, it was unnecessary for the HRTO to consider the secondary issue of whether the Respondents had suffered prejudice.
[34] It has been noted that the governing legislation gives clear direction that HRTO decisions, including procedural decisions, are to be given a high degree of deference so as to ensure that human rights disputes can be resolved in an expeditious manner. Similarly, the HRTO must be able to control its own proceedings in a manner that is expeditious and offers an efficient resolution for the parties (see: James v York University et al., 2015 ONSC 2234; Taucar v Human Rights Tribunal of Ontario, 2017 ONSC 2604).
[35] The HRTO’s decision to decline to change its decision upon reconsideration was also reasonable and justified in the circumstances.
[36] Rule 26.5 of the HRTO’s Rules provides that a request for reconsideration may only be granted in specific situations. The Applicant relied on Rule 26.5(a) which required him to establish there were new facts that could potentially be determinative of the case and to establish that these new facts could not reasonably have been obtained earlier.
[37] On reconsideration, the Applicant argued that he did not submit reactivation requests until reminded to do so by the Case Processing Officer managing his files because he did not understand that it was his responsibility to do so. This argument had not been raised at the preliminary hearing and, in any event, was not accepted by the HRTO nor did it alter the outcome. The Applicant had been informed in writing of the time lines for any reactivation requests and had failed to comply with them.
[38] The HRTO was likewise justified in finding that the medical documentation adduced by the Applicant in support of his reconsideration request did not provide any new information about his condition and provided no basis for concluding that he was unable to file his reactivation requests in a timely manner.
[39] In summary, the HRTO’s reasoning process and the outcome as demonstrated in both decisions under review reflect an internally coherent and rational chain of analysis and are justified in relation to the applicable facts and law (see: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65).
[40] Accordingly, the Applicant has not succeeded in establishing that either the decision or the reconsideration decision were unreasonable.
Conclusion
[41] For these reasons, the application must be dismissed.
Costs
[42] Costs in the amount of $2500.00, inclusive of all disbursements and applicable taxes, are hereby awarded to the successful Respondents Aramark and Crawford & Company (Canada) Inc. and payable by the Applicant. We view that amount as a fair and reasonable one for these Respondents to receive and for the Applicant to pay in all of the circumstances.
[43] The HRTO does not seek costs.
Stewart J.
I agree _______________________________
ACJ McWatt
I agree _______________________________
Reid J.
Released: March 31, 2023
CITATION: Laksaman v. Aramark, 2023 ONSC 2040
DIVISIONAL COURT FILE NO.: DC-561-20
DATE: 20230331
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ACJ McWatt, Stewart, Reid JJ.
BETWEEN:
Laksaman Fernando Mihindukulasuriya
Applicant
– and –
Aramark Canada Limited, UNITE HERE Local 75, Oncidium Health Group, Crawford & Company (Canada Inc.), Consiglio Consultant, and the Human Rights Tribunal of Ontario
Respondents
REASONS FOR DECISION
Stewart J.
Released: March 31, 2023