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Human Rights (Ont) - Gate-Keeping. 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. . Gardener v. Abell Pest Control Inc.
In Gardener v. Abell Pest Control Inc. (Div Court, 2023) the Divisional Court considered (and allowed) a JR of an HRTO decision dismissing an application as late. From my experience and study these underlying procedural facts are an all-to common and unfair reaction from the Ontario human rights system to applicants:[2] There is no dispute that Ms. Gardener attended at the Tribunal Office to submit her application at approximately 4 PM on August 29, 2019, the last day for filing her complaint under s. 34 of the Human Rights Code. She had with her an electronic copy of the application form on a USB device. With the assistance of a Tribunal staff member she was able to print a copy of her application but, due to computer issues, it took time to print, until 5:20 PM. However, the staff member then refused to accept or date-stamp the printed form as it was after 5 PM.
[3] After speaking to the Tribunal by telephone in attempts to resolve the issue, on September 5, 2019 the Tribunal accepted Ms. Gardener’s application after she attended the Tribunal Office on that date. Ms. Gardener stated that she was unable to attend earlier due to a family emergency.
[4] In our view, the Tribunal’s decision that the filing was out of time is unreasonable. The Tribunal did not put any weight on Ms. Gardener’s actions attempting to file the application on August 29, 2019. Instead, the Tribunal considered whether Ms. Gardener had good faith reasons for delaying until the last day and examined her explanation for the seven days that followed until September 5, 2019, which led it to conclude that the time for filing should not be extended. These issues would have been irrelevant if the application had been accepted for filing by the Tribunal staff, or the Tribunal had simply exercised its discretion to extend the time given the clear intention, and efforts, to file the application on time, but the Tribunal gave those facts no consideration beyond stating them.
[5] In our view, this application was filed on time, and in the alternative the Tribunal could, and should, have simply exercised its discretion under its own Rules of Procedure, consistent with other Tribunal decisions, to extend the time past 5 PM to permit the application to be filed within the statutory limitation period: see, e.g. Brown v. Bellissimo Pizzaria and Restorante, 2014 HRTO 1403, at paras. 13-14; Jones v. Book, 2018 HRTO 1560, at paras. 28-31. Instead, the Tribunal ignored Ms. Gardener’s efforts on August 29, 2019 and unreasonably found that it was out of time, and despite Ms. Gardener’s evidence of her personal circumstances over the preceding year, and of what she had done between August 29 and September 5, 2019, that Ms. Gardener had not made a “good faith” effort to file the application in time.
[6] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 6, the Supreme Court of Canada stated at para. 135:Many administrative decision makers are entrusted with an extraordinary degree of power over the lives of ordinary people, including the most vulnerable among us. The corollary to that power is a heightened responsibility on the part of administrative decision makers to ensure that their reasons demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and law. [7] Those words are apt here. The Tribunal’s reasons, including its reconsideration, did not reflect the heightened responsibility on it to appropriately address the circumstances – a printing misadventure that caused the application to be ready to be filed at 20 minutes after 5 PM - or the consequence of its decision which denied Ms. Gardener the ability to pursue her human rights complaint.
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