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Fairness - Abandonment. Ramirez v. Rockwell Automation Canada Ltd.
In Ramirez v. Rockwell Automation Canada Ltd. (Ont Divisional Ct, 2025) the Divisional Court granted an HR complainant's JR, here on remarkable grounds of HRTO presumption:[1] I would grant the application for judicial review for the following reasons.
[2] The parties agreed to hold the Applicant’s complaint in abeyance pending proceedings before the WSIB.[1] The Tribunal so ordered.
[3] Periodically, the Tribunal asked to be updated on the status of the WSIB proceedings.
[4] The Applicant did not respond to one such inquiry and on October 27, 2023, the Tribunal dismissed the complaint as abandoned.[2]
[5] The Applicant sought reconsideration of the dismissal Order, claiming that he had not received the Tribunal’s e-mail of inquiry.
[6] The Tribunal was satisfied that the e-mail of inquiry was sent to and delivered to the Applicant’s e-mail address and therefore refused to set aside the dismissal order by decision dated April 15, 2024.[3]
[7] With respect, the question for the Tribunal was not whether the e-mail of inquiry was delivered to the Applicant’s e-mail address. That point was but one fact going to the question of whether the Applicant had abandoned the proceeding. This one fact had to be placed within the context of other pertinent facts including:1. The Applicant had not failed to meet his obligations as a party before the Tribunal previously. There was no history of delay or non-responsiveness by any party and holding the proceeding in abeyance had been approved by the Tribunal.
2. The Applicant had a record of diligent response to Tribunal communications in respect to another proceeding before the Tribunal.
3. The Tribunal had no information as to whether or when the WSIB proceedings had been resolved. Both parties agree that those WSIB proceedings are still ongoing as of today.
4. The reconsideration decision did not encompass a contextual analysis of whether the Applicant had abandoned the proceeding but rather focused on whether the Applicant had “received” the e-mail. [8] It is clear the Tribunal inferred abandonment from the failure to respond to one e-mail. With respect, failing to respond to one e-mail, in all of the circumstances of this case, cannot possibly justify an inference that the Applicant had abandoned the proceeding.
[9] The inference that he had done so is unreasonable and cannot stand.
[10] I would not venture into more detail. I understand the need for the Tribunal to follow a practical, efficient process for administrative dismissal of proceedings for abandonment. However, such an efficient process must include processes for a litigant to contest a dismissal on a complete record on the merits of whether the litigant abandoned or should be deemed to have abandoned a proceeding.
[11] It is for the Tribunal to devise its processes to achieve efficiency, due process and fairness.
[12] I see no reason to remit the reconsideration of the dismissal decision or the dismissal decision itself to the Tribunal. The dismissal is obviously unfair in all the circumstances.
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