Michael Taranco v. Peter Michedes aka Panayitis Michaelides, 2009 HRTO 1439

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Taranco Applicant

-and-

Ontario Human Rights Commission Commission

-and-

Peter Michedes aka Panayitis Michaelides Respondent

RECONSIDERATION DECISION

Adjudicator: Sheri D. Price Date: September 10, 2009 Citation: 2009 HRTO 1439 Indexed as: Taranco v. Michedes

WRITTEN SUBMISSIONS BY

Ontario Human Rights Commission ) Prabhu Rajan, Counsel Michael Taranco, Complainant ) On his own behalf Peter Michedes, Respondent ) No one

INTRODUCTION

1This Complaint was referred to the Tribunal by the Commission pursuant to section 36(1) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code") and alleged discrimination on the basis of age and sex in respect of accommodation.

2This Decision deals with the Commission and the complainant's Request for Reconsideration of the Tribunal's Decision, 2009 HRTO 426, dismissing the Complaint. For the reasons that follow, the Tribunal grants the Request for Reconsideration.

BACKGROUND AND POSITIONS OF THE PARTIES

3In an Interim Decision, 2009 HRTO 67, the Tribunal ordered that the Complaint would proceed by way of written hearing. In the absence of any participation in the proceeding by the respondent, the Commission and the complainant were directed to submit their evidence on the Complaint in affidavit form. The respondent did not make any submissions. However, neither the Commission nor the complainant submitted any affidavit or other evidence in the written hearing.

4Thus, on April 9, 2009, the Tribunal issued its Decision dismissing the Complaint on the basis that no evidence had been presented and that there was therefore no basis upon which the Tribunal could find that the respondent had violated the complainant's rights under the Code or order the requested remedies.

5On April 27, 2009, the Commission filed a Request for Reconsideration of the Tribunal's Decision. In its Request, the Commission submits that it misread the Tribunal's Interim Decision and failed to understand that it was required to submit affidavit evidence in the written hearing. Specifically, it appears that another Commission counsel who was handling the matter at that time was under the impression, albeit an erroneous one, that the pleadings which had been submitted would suffice as a basis for the Tribunal's findings.

6Moreover, and perhaps more importantly, the Commission submits that Commission counsel erroneously informed the complainant, who was not represented by his own legal counsel, that he was not required to submit any evidence to the Tribunal in the written hearing or to do anything in response to the Interim Decision.

7The Commission submits that the Tribunal ought to grant the Request for Reconsideration pursuant to Rule 102(d) of the Tribunal's Rules of Practice for Commission-referred Complaints. Rule 102 states:

102. A request for reconsideration will not be granted unless the Tribunal is satisfied that:

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier;

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing;

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions and orders.

8The Commission submits that factors exist in this case that outweigh the public interest in the finality of Tribunal decisions and orders. Specifically, the Commission submits that the Complaint was dismissed through no fault of the complainant who was incorrectly informed by the Commission's legal counsel that nothing further was required of him in response to the Interim Decision. The Commission submits that it would be unfair in these circumstances to deny the complainant a hearing on the merits of his complaint simply because he relied and acted upon what the Commission told him. The Commission submits that the unfairness to the complainant outweighs the public interest in the finality of Tribunal decisions and orders in this case.

9The Commission further submits that the respondent would suffer no prejudice if the Reconsideration Request were granted because, as noted in the Interim Decision, the respondent has never participated in any stage of this proceeding, either at the Commission or the Tribunal level, although the respondent had notice of the Complaint and of the written hearing.

10The complainant submits that the Reconsideration Request ought to be granted. He confirms that after he received a copy of the Tribunal's Interim Decision indicating that the Complaint would proceed by way of written hearing, he emailed Commission counsel to ask whether he was required to do anything in response. He provided the Tribunal with a copy of this email and the response from Commission counsel who unequivocally told the complainant that he did not have to do anything. The complainant submits that he is not sophisticated in legal matters and concluded that he could rely on the assurance of experienced Commission counsel about procedural matters in regard to his Complaint. The information he was provided by the Commission was, of course, not accurate, and the Complaint was ultimately dismissed as a result of the Commission's and the complainant's failure to present any evidence at the written hearing.

11As required by the Rules of Practice governing Commission-referred Complaints, the respondent was given an opportunity to make submissions on the Request for Reconsideration, but did not do so.

DECISION

12The Commission and the complainant are separate parties to this proceeding, which was referred under the Code as it read prior to June 30, 2008. Under that regime, the Commission represents the public interest and the complainant represents his own interests in the Complaint. Complainants in Commission-referred cases are entitled to participate in proceedings before the Tribunal as parties in their own right. They may also choose to retain their own legal counsel. This is the legal reality.

13The complainant was not represented by his own legal counsel. As such, although the Commission's legal counsel was not his lawyer and was not responsible for providing the complainant with legal advice about his obligations in the written hearing, he relied upon her written and unequivocal advice to him that he was not required to do anything in response to the Tribunal's Interim Decision. I find that it was reasonable, in all of the circumstances, for the complainant to trust the assurances of Commission counsel as he did. I also find that it was his reliance on this response from Commission counsel which led him not to present any evidence in the written hearing which ultimately led to the dismissal of his Complaint.

14The issue is whether the factors in this case outweigh the public interest in the finality of Tribunal decisions. The public has a significant interest in the finality of Tribunal decisions, as do parties who appear before the Tribunal. When parties participate in the hearing of a Complaint before the Tribunal, they often invest significant time and resources in presenting their cases. Indeed, this is so, in part, because parties know (or ought to know) that once the Tribunal makes a decision, barring the exceptional circumstances which may justify reconsideration, the decision will be final. "Once the parties to a case have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions." See: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34.

15The public also has an interest in the Tribunal expending its resources wisely and fulfilling its mandate under the Code to resolve complaints in a fair, just and expeditious manner. The Tribunal's resources would be inappropriately taxed and the fairness and expeditiousness of its processes undermined if the Tribunal allowed reconsideration to be used as a means for parties to repair deficiencies in their case, effectively having a "second kick at the can". Moreover, the finality of the Tribunal's decisions is important to preserve their value as a guide to members of the community as to their obligations under the Code. If the Tribunal's decisions were not truly "final", because reconsideration was so readily available, the Tribunal's decisions would likely be regarded as being in a constant state of flux and therefore of limited usefulness

16Mindful of all of this, it is nonetheless my view that the importance of ensuring that the complainant is not unfairly deprived of a hearing through no fault of his own outweighs, in the very particular circumstances of this case, the public interest in the finality of decisions. In this case, the complainant was the innocent victim of erroneous advice from another, more sophisticated party to the proceeding. If the decision to dismiss the Complaint is not reconsidered, then the complainant will have been deprived of a decision on the merits of his case, and, if he can establish that the respondent violated his rights under the Code as alleged, also of a remedy. I am persuaded that this would be unfair to the complainant who conducted himself reasonably in this matter, by relying on the statements of Commission counsel.

17While the public interest in the finality of Tribunal decisions is an important interest, it is less compelling in this case because the respondent has not participated in any part of the Commission or Tribunal process in respect of the Complaint. This is not a situation where a respondent has defended a case against it at the Tribunal and won, only to be pulled back again to answer the same case. Moreover, although I agree that reconsideration should not be granted so as to afford a party the opportunity to repair deficiencies in its case, this is not a situation where a hearing was held, evidence called, submissions made and a decision rendered. In this case, there was no adjudication of the merits of the dispute. The dismissal of the Complaint was more in the nature of a default judgment because of what may be best described as a technical failure on the part of the Commission and the complainant.

18The Request for Reconsideration is granted.

ORDER

19The respondent has never participated in this proceeding and in accordance with the Tribunal's Interim Decision 2009 HRTO 67, he is not entitled to further notice of or participation in the proceeding.

20The Tribunal makes the following orders in relation to the reconsideration of its Decision 2009 HRTO 426, :

a) No later than October 2, 2009, the Commission and the complainant shall serve on the respondent (by personal service) and file with the Tribunal all evidence (in affidavit form), documents, submissions and argument which they ask the Tribunal to consider in making a decision on the merits of the Complaint and with respect to the appropriate remedy. At the same time that they serve the respondent with their evidence and other materials, the Commission and the complainant are directed to deliver a copy of this Reconsideration Decision to the respondent.