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Human Rights (Ont) - Gate-Keeping. 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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