Commission did not give proper consideration to fact respondent had retained counsel

HUMAN RIGHTS COMMISSION/TRIBUNAL

Commission did not give proper consideration to fact respondent had retained counsel

Applicant employed respondent. Respondent’s application for position of operations manager was not successful. Respondent commenced medical leave on basis of severe depression as result of not getting position. Parties were unsuccessful in negotiating severance package. Applicant made repeated requests for medical assessments to determine whether accommodation was possible. Respondent provided no assessments. Applicant terminated respondent’s employment. Commission exercised discretion to deal with respondent’s complaint of discrimination on grounds of physical and mental disability. Commission extended one-year filing period regarding events of 2009 and refused to consider prior allegations. Commission found applicant did not show serious prejudice to ability to respond to complaint as result of delay. Commission determined respondent’s failure to file complaint was due to respondent’s uncertainty with respect to jurisdictional nature of applicant. Application for judicial review was allowed. Commission failed to take into account respondent was represented by counsel at all times. It could not be said respondent was unable to submit complaint in timely fashion for reasons outside respondent’s control. Commission should have considered entirety of complaint. There was no consideration of nature and seriousness of issues raised in complaint. Respondent was unable to provide justifiable reasons why respondent was unable to bring complaint in timely manner. Commission erred and acted unreasonably in focusing on alleged misunderstanding of respondent with respect to jurisdictional issues without giving proper consideration to fact respondent had retained counsel.
168886 Canada Inc. v. Reducka (May 4, 2012, F.C., de Montigny J., File No. T-1081-11) 217 A.C.W.S. (3d) 667 (11 pp.).