Edward v. Moda at Home, 2009 HRTO 1010

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rohan Edward Applicant

-and-

Moda at Home Inc. Respondent

RECONSIDERATION DECISION

Adjudicator: David A. Wright Date: July 9, 2009 Citation: 2009 HRTO 1010 Indexed as: Edward v. Moda at Home

1By Decision 2009 HRTO 694, this Application was dismissed as abandoned. That Decision was made after the following series of events:

• A hearing was scheduled by notice dated December 19, 2009 for February 25, 2009.
• The respondent filed its documents and witness list as required by Rules 16 and 17 on January 8, 2009. The applicant, who is represented by David Thomas of an organization called the Tamil Catholic Community of Toronto, did not do so.
• The applicant and his representative failed to attend the hearing of February 25, 2009. The respondent was present. The Tribunal took the extra step of contacting the applicant and his representative, who advised that he had not received notice of the hearing nor the respondent’s documents and will-say statements. The Tribunal therefore granted an adjournment.
• The respondent copied the Tribunal on a letter to the applicant’s representative which advised that the witness list and documents were in fact delivered to Mr. Thomas’s office address on January 8, 2009 and that the respondent’s courier service had confirmed this.
• The Tribunal sent a Confirmation of Rescheduled Hearing on March 2, 2009 scheduling the hearing for June 9, 2009. It set out the parties’ obligations to file a list of documents (required by Rule 16) and a list of witnesses (required by Rule 17) 45 days prior to the hearing.
• The applicant and his representative failed to file the documents as required.
• The Tribunal issued an Interim Decision, 2009 HRTO 568, on May 5, 2009, expressing “serious concern, particularly in light of his previous non-attendance at a scheduled hearing” that the applicant had not filed his documents. The Interim Decision directed the applicant or his representative to confirm that they would be present at the hearing on June 9, 2009 and to comply with Rules 16 and 17. It stated that a failure to do so could result in the Application being dismissed as abandoned.
• The Interim Decision was sent to the applicant’s representative by courier and e-mail. The courier’s records show that it was delivered and signed for by the representative on May 15, 2009. The copy to the applicant was returned as undeliverable.
• Neither the Applicant nor his representative responded to the Tribunal’s Interim Decision.
• On May 26, 2009 the Tribunal issued its Decision cancelling the hearing and dismissing the Application as abandoned.

2The applicant seeks reconsideration of the Decision, relying upon the ground set out in Rule 26.5 (b), permitting reconsideration where “the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing”. Mr. Thomas has submitted a statutory declaration that states as follows:

THAT: I have been acting for the complainant, Mr. Rohan Edward in the human Rights Tribunal of Ontario matter, file No. 2008-00218.

THAT: I Have just recently been able to peruse the “confirmation of Rescheduled Hearing’ of March 2, 2008.

THAT: I have been inundated with several serious problems, resulting from the death of innocent victims, in the recent war against the Tamils in Sri Lanka.

THAT: my involvement not only entails the agony of having lost family members but also as Pastoral Assistant at Our Lady of Lourdes Church I have had to deal with members of my parish, who have lost loved one.

THAT: I truly regret missing the opportunity to deal with this matter and humbly beseech the tribunal to fix another hearing date around August or September of 2009.

3As noted in Ouwroulis v. New Locomotion, 2009 HRTO 335, filing an Application with the Tribunal requires a respondent to take significant steps, and engages substantial public resources. Parties are required to respond to Tribunal directions and comply with the Tribunal’s Rules, in order to ensure fairness to both parties and the efficient use of resources to deal with the many applications the Tribunal receives.

4Representatives, too, have obligations to both their clients and to the Tribunal. A significant part of that responsibility is complying with the HRTO’s Rules and responding to Tribunal communications. As set out in the Tribunal’s Policy on Representation before the HRTO:

Representatives must treat each other and the Tribunal with courtesy and respect. Both licensed and unlicensed representatives are expected to know and follow the HRTO’s Rules and any directions or orders made during the proceeding. Acting on the client’s behalf and instructions, a representative is responsible for all communications with the HRTO and the other parties and for preparing and presenting the client’s case to the HRTO.

Where a representative is unable to fulfil that responsibility, he or she has the obligation not to continue to act in the file, or to advise the Tribunal of an alternate contact.

5The difficulties the applicant’s representative sets out are understandable in the circumstances and I have no reason to doubt the stress that he describes. However, they do not justify reconsideration of the Tribunal’s Decision in the face of the ongoing failure of the applicant and his representative to comply with the Rules and treat the Tribunal and the respondent with respect and courtesy. The applicant’s representative failed to comply with the Tribunal’s Rules on numerous occasions over many months. He failed to respond to a Tribunal Interim Decision setting a specific deadline for doing so. The Tribunal was not advised of the change in the applicant’s contact information as set out in Rule 1.13 or of his representative’s unavailability. This is not a situation where a party failed to receive notice through no fault of their own. Rather, the applicant’s representative, who continued with other duties such as those at his church, chose not to review or respond to the Tribunal’s correspondence or decisions.

6The Request for reconsideration is dismissed.