Hill-LeClair v. Booth, 2009 HRTO 2065

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christine Hill-LeClair Applicant

-and-

Joseph Booth Respondent

RECONSIDERATION decision

Adjudicator: Faisal Bhabha Date: November 30, 2009 Citation: 2009 HRTO 2065 Indexed as: Hill-LeClair v. Booth

INTRODUCTION

1On October 13, 2009, the Tribunal issued a Decision, 2009 HRTO 1629, finding that the respondent’s conduct in relation to the applicant amounted to harassment on the basis of sex and sexual solicitation by a landlord, within the meaning of section 7 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The respondent has filed a Request for Reconsideration of this Decision.

BACKGROUND

2This Application was filed on December 31, 2008. On January 26, 2009 the Tribunal sent the respondent Notice of the Application, advising him that a Response was required no later than 35 days from the date of the Notice.

3On March 6, 2009, the respondent contacted the Tribunal to request more time to file a Response, and requested that the Tribunal fax him a copy of the Form 2 (Response), which the Tribunal did on March 6, using the fax number provided by the respondent. The respondent also provided the Tribunal with his mailing address, in New Brunswick. The respondent agreed to complete and return the Response by March 9, 2009. No Response was filed.

4In an Interim Decision, 2009 HRTO 349 dated March 25, 2009, the Tribunal noted that no Response had been filed and granted the respondent additional time to file it. The Tribunal cautioned the respondent that if the Response was not filed by April 8, 2009, it could result in the Tribunal taking any number of steps described in Rule 5.5, including proceeding without further notice to him, deeming him to have accepted all of the allegations and waiving his right to participate, and deciding the matter only on the material filed. No Response was filed.

5In a further Interim Decision, HRTO 536 dated April 29, 2009, (“April Interim Decision”), the Tribunal issued the following directives:

a. The respondent is deemed to have accepted all of the allegations set out in the Application;

b. The respondent is deemed to have waived all rights to notice or participation in these proceedings; and

c. No later than two weeks before the date set for the hearing, the applicant may submit any additional document she wishes the Tribunal to consider in deciding this Application.

d. The Registrar will schedule a half-day hearing in this matter.

6On May 19, 2009, the Tribunal sent the Confirmation of Hearing Notice to the respondent at the New Brunswick address he provided. The Tribunal file contains a record of contact on or about May 27, 2009, noting a voice mail message from the respondent which appears to confirm that he received the Confirmation of Hearing, and indicating that he would be relocating to Edmonton in August. He did not provide a forwarding address and did not request an adjournment of the hearing. The hearing proceeded on August 19, 2009 without the respondent’s involvement.

7On October 14, 2009, the Tribunal issued its Decision. A copy of it was sent to the respondent by regular mail and fax at the address in New Brunswick where previous correspondence, including the Confirmation of Hearing, had been sent. The next day, October 15, 2009, the respondent submitted his Request for Reconsideration (Form 20). Writing from an Edmonton address, the respondent stated in support of his Request: “There are new facts. Did not get Notice of court date.” No further submissions were filed.

REQUEST FOR RECONSIDERATION

8Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, 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.

9It is also useful to consider the Tribunal’s Practice Direction on Reconsideration, which states in part:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

DECISION

10Strictly speaking, it is unnecessary for me to consider the merits of the respondent’s Request for reconsideration. In the April Interim Decision, the respondent was deemed to have accepted all of the applicant’s allegations as true, and to have waived his right to participate in the proceeding. There is no indication that the respondent did not receive the April Interim Decision. Not only was it delivered to the address he provided and not returned, but the file indicates the respondent was in contact periodically with the Tribunal from the time the Application was filed up to the date of the hearing and following the release of the final Decision.

11The respondent had the opportunity to seek reconsideration of the April Interim Decision and did not do so. Because he did not contest those conclusions, he had no right to be notified of, or to participate in, the hearing. Because he had no right to participate in the hearing, the respondent likewise has no right to seek reconsideration of the Decision on the basis of new facts or evidence, or on the basis of lack of notice.

12While unnecessary, it is nonetheless worth considering the respondent’s request on the merits. The respondent claims that there are new facts or evidence that could potentially be determinative of the case, yet he failed to describe or particularize any of the alleged new facts in his request. If the respondent had hoped to convince the Tribunal that it should reconsider the Decision, one would expect him to summarize the new information and produce supporting evidence, if any, in order to persuade me that his Request is genuine. In the absence of any details or description whatsoever about the alleged new facts, it is impossible for the respondent’s Request to succeed on this basis.

13With respect to the claim that he did not get notice of the hearing date, as noted above, the respondent was not entitled to notice of the hearing, as provided in the April Interim Decision. Nevertheless, the Tribunal did send him a copy of the Confirmation of Hearing as a courtesy, and it appears he confirmed in May 2009 with Tribunal staff that he received the notice.

14On the material before me, and on the basis of the previous Interim Decisions issued by the Tribunal, I am satisfied that the respondent was not “entitled” to receive notice of the hearing on August 19, 2009, within the meaning of Rule 26.5(b). His bald assertion “did not get Notice of court date” is therefore not supported. I further conclude that the respondent not only received notice of the hearing date, but that he was notified of every step along the way through these proceedings. While the respondent no longer had any right to notice, the Tribunal continued to copy him on all correspondence as a courtesy, and there is no indication that he did not receive that correspondence.

15In view of the above, the Reconsideration Request is denied.