Bard v. Heenan Blaikie, 2010 HRTO 2362

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carole Bard Applicant

-and-

Heenan Blaikie LLP and Jennifer O’Leary Respondents

RECONSIDERATION Decision

Adjudicator: Michelle Flaherty Date: November 30, 2010 Citation: 2010 HRTO 2362 Indexed as: Bard v. Heenan Blaikie

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).

2The respondents asked for early dismissal of the Application because they say the applicant signed a full and final release with respect to the subject matter of the Application.

3Following an earlier Interim Decision, 2010 HRTO 1303, the applicant wrote to the Tribunal and the respondents and indicated that she wished to make oral submissions in regards to the respondents’ request for early dismissal.

4The Tribunal scheduled a hearing by way of conference call, which took place on October 5, 2010. Although both parties appeared to have received notice of the hearing, neither party joined the telephone conference call or participated in the hearing.

5The Tribunal found that the Application had been abandoned and, on October 6, 2010, dismissed the Application on that basis: 2010 HRTO 2033.

6On November 5, 2010, the applicant filed a Request for Reconsideration (“Request”) indicating that she did not receive notice of the telephone conference hearing (“Notice”). The applicant states that she no longer resides at the address originally provided to the Tribunal. She states that she received a copy of the Decision by email, but that she did not receive the Notice.

7The Notice was sent to the applicant by regular mail. I note that, in the Application, the applicant indicated that she preferred to communicate with the Tribunal by email.

8The respondent objects to the Request. It points out that the applicant continues to use the same address in her correspondence with the Tribunal, including in her Request filed on November 5, 2010.

9Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request that it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. 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.

10As the Tribunal explained in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, reconsideration is a discretionary remedy. Although the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

11The applicant states that she did not receive notice and she is seeking an opportunity to be heard. In the circumstances, however, I cannot find that the failure to receive notice was through no fault of the applicant. She failed to provide the Tribunal with a current mailing address.

12Notwithstanding this, I am satisfied that, in the circumstances, it is appropriate to reconsider the Decision. In my view, there are factors that, in the circumstances, justify a reconsideration. First, neither party attended the telephone conference hearing scheduled in this matter. Before the Decision dismissing the Application as abandoned was issued, the respondent also communicated with the Tribunal and sought an opportunity to be heard.

13Second, I accept that the applicant did not receive notice of the hearing. While it is clearly her responsibility to provide a current address to the Tribunal, she appears to have received some communication from the Tribunal by email. The applicant acted promptly when she received the Decision by email and I am satisfied that she did not intend to abandon the Application.

14In all of these circumstances, I find that it would be unfair not to give the applicant an opportunity to be heard.

15The Registrar will schedule a telephone hearing to address the respondent’s request for early dismissal of the Application. The directions provided at paragraph 7 of Interim Decision 2010 HRTO 1303 will apply to the rescheduled hearing of this matter.

16Within five days of this Reconsideration, the applicant will provide the Tribunal and the respondent with a current mailing address.

17I am not seized of this matter.