Budan-Hughes v. Clemmer Steelcraft Technologies, 2009 HRTO 1618

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Budan-Hughes

Applicant

• and-

Clemmer Steelcraft Technologies Inc.

Respondent

RECONSIDERATION DECISION

Adjudicator: David A. Wright

Date: October 7, 2009

Citation: 2009 HRTO 1618

Indexed as: Budan-Hughes v. Clemmer Steelcraft Technologies

1This is a Request for Reconsideration in a Breach of Settlement Application that was dismissed as abandoned: see 2009 HRTO 832. The alleged breach of settlement is that while a payment to the applicant was required under the Minutes of Settlement by March 31, 2009, it was not delivered until April 9, 2009.

2The Application was filed with the Tribunal by fax on the evening of April 8, 2009. In the Application, the applicant marked the box stating that the best way to send information to him was by e-mail. The Application form states, “If you check email, you are consenting to the delivery of documents by email”.

3The respondent states in its Response that the late delivery of the payment was a result of a clerical oversight and that it was sent immediately by taxi upon the matter being brought to the respondent’s attention through the delivery of this Application.

4On May 25, 2009 the Registrar wrote to the applicant, with a copy to the respondent, as follows:

The Tribunal has received the respondent’s Response in respect of your application alleging a contravention of settlement. In the response the respondent advises that through an error you did not receive settlement funds on the date agreed to between the parties but that you are now in receipt of those funds.

On May 5, 2009, you advised the Tribunal by phone that you wish to continue with this Application.

In the circumstances, please confirm in writing your position with respect to continuing with your application, whether you dispute receiving the settlement funds in full and describe the remedy or relief you seek. Please deliver your submissions to Mr. Geiger, the lawyer for the respondent, and file them with the Tribunal no later than 10 days from the date of this letter.

This letter was sent to the applicant by e-mail, at the e-mail address indicated on his Application.

5Seventeen days later, on June 11, 2009, no response had been received from the applicant. Accordingly, the Application was dismissed as abandoned.

6After various correspondence with the Registrar’s office and an extension of time being granted, the applicant submitted a Request for Reconsideration on August 6, 2009. The Request relies upon all four grounds in Rule 26.5(a), which reads as follows:

26.5 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; or

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; or

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.

7Primarily, the applicant argues that he did not receive the e-mail that was sent to him on May 25. He disputes that it was sent and argues that e-mail is a “non-legal form of service”. He states that he was in contact with the Registrar’s office for updates on his file and was not advised of the e-mail that had been sent. He has, however, not provided the date or details of any update request he says he made between May 25, 2009 and June 11, 2009, the date of the Decision.

8I have reviewed the Tribunal’s records, and am confident that the e-mail with the letter attached was sent to the e-mail address provided by the applicant in his Application at 4:09 PM on May 25, 2009. There was nothing improper about this method of delivery of the letter. Rule 1.21 (e) reads as follows:

1.21. Documents must be delivered in one of the following ways:

e) e-mail where the person or parties receiving the document has consented to e-mail delivery.

The applicant consented to e-mail delivery in his Application by requesting that documents be delivered to him in this manner. The Registrar acting properly in sending the letter to the e-mail address on file.

9In different circumstances, the applicant’s assertion that he did not receive the e-mail, despite it being properly sent, might warrant further inquiry or evidence, but it is important to take into account the nature of this Application. The applicant seeks damages for an eight-day delay in receiving a payment due pursuant to Minutes of Settlement. There is no indication that he raised this matter with the respondents prior to filing this Application and the matter was rectified as soon as the Application was filed. In view of the minor nature of any breach of the agreement on the applicant’s version of the facts, these are not circumstances in which proceeding with the Application could override the public interest in the finality of decisions. It is a general legal principle that “the law does not concern itself with trifles” (“de minimus non curat lex”): see, for example, Ontario v. Canadian Pacific, 1995 CanLII 112 (SCC), [1995] 2 S.C.R. 1031 at para. 65. In the circumstances, where there is an extremely minor alleged breach of settlement and notice was sent to the applicant in the manner he requested but he failed to respond, there is no reason to grant this Request for Reconsideration.

10In all the circumstances, the Request for Reconsideration is dismissed.