Anamguya v. Intercon Security Limited, 2010 HRTO 269

Human Rights Tribunal of Ontario

B E T W E E N:

David Anamguya Applicant

-and-

Intercon Security Limited, Blair Mitchell and Nicole Lentinello Respondents

INTERIM DECISION

Adjudicator: Judith Keene Date: February 5, 2010 Citation: 2010 HRTO 269 Indexed as: Anamguya v. Intercon Security

1This Interim Decision deals with a Request to reconsider a Decision, 2009 HRTO 1302 dated August 24, 2009 dismissing an Application as abandoned.

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), on November 7, 2008. The Application alleges discrimination in employment on the ground of sex, including sexual harassment.

3On June 25, 2009, the respondents served and filed a Request for Order during Proceedings seeking dismissal of the Application on the basis that the applicant had signed a release on April 2, 2009. Along with their Request, the respondents provided a copy of the signed release and accompanying correspondence setting out the terms and conditions of the applicant’s employment termination.

4The Request for Order served on the applicant indicated that, within two weeks, he could respond to the Request for Order by delivering and filing a Form 11 responding to the allegation that he had signed a full and final release. The applicant did not do so. An Interim Decision dated July 27, 2009, 2009 HRTO 1148, requested submissions from the applicant to advise whether he intended to pursue his Application, and if so, why, in his submission, the release does not bar the Application. The applicant was advised that, if he made no submissions by August 6, 2009, the Application might be dismissed as abandoned.

5The Interim Decision requesting submissions was sent by courier to the applicant, but was returned some days later. The Tribunal re-sent the Interim Decision by e-mail to the applicant at the e-mail address he had given. No submissions were received from the applicant in response to the Interim Decision. The Decision dismissing the Application was sent to the applicant by e-mail on August 24, 2009.

6The applicant contacted the Tribunal on September 17, 2009 stating that he had not received any decisions. He then filed a letter with the Tribunal on September 21, 2009, requesting reconsideration of the Decision to dismiss. The applicant was informed by e-mail on September 22, 2009 that he must file a Form 20 Request for Reconsideration with the Tribunal if he wished to have the Decision reconsidered. The applicant filed a letter dated November 11, 2009, referring to a mental illness and stating that he had been hospitalized and was detained in a correctional facility. The letter does not identify the dates on which the applicant was hospitalized. The letter does not identify the dates on which the applicant was incarcerated. There is no information about how the applicant’s illness might interfere with his ability to comply with the rules of a legal proceeding.

7On January 21, 2010, the applicant filed a Form 20 Request for Reconsideration of the Decision. As grounds for reconsideration, the applicant indicated that there are new facts or evidence, and that he was entitled to notice but through no fault of his own did not receive notice of a proceeding.

8The Tribunal has insufficient information from the applicant to make any conclusions on three important issues. The first is whether the applicant received the Interim Decision of July 27, 2009. The applicant appears to suggest that he did not receive it. The Tribunal’s records show that the Interim Decision was sent to the applicant at the address he provided, and was returned to the Tribunal, but that sending the Interim Decision by e-mail appeared to be successful. The applicant must clarify whether he received the Interim Decision, and if he maintains that he did not receive it, state whether he has any explanation for why he did not receive it.

9Secondly, if the applicant received the Interim Decision, he must provide an explanation for why he did not respond as directed by August 6, 2009. Third, the applicant must provide reasons for why the applicant did not file his Request for Reconsideration in the appropriate form until January 21, 2010, beyond the 30-day time limit set out in the Tribunal’s Rules.

10The Tribunal appreciates the public interest in the finality of its decisions. Before it can decide whether there are compelling circumstances that would lead the Tribunal to accept the Request for reconsideration, it will give the applicant an opportunity to provide more information.

11Rule 26 requires that the Tribunal shall not grant a Request for Reconsideration without providing the parties an opportunity to make submissions. However, in this case, the Tribunal needs to hear first from the applicant.

12The applicant is directed to provide written information to address the following questions:

a) On what dates was he was hospitalized?

b) On what dates was he was incarcerated?

c) Were there circumstances that made him unable to respond to the Decision dated July 27, 2009, and, if so, what were those circumstances?

d) What new facts or evidence does the applicant wish to present?

e) The applicant is reminded that the respondents have sought dismissal of the Application on the basis that the applicant had signed a release at the termination of his employment on April 2, 2009. If he wishes to pursue this Application, the applicant must state why, in his submission, the release does not bar the Application. The copy of the release and accompanying correspondence concerning the applicant’s employment termination, sent to the Tribunal by the respondent, is enclosed with this Interim Decision.

13The applicant must send his response to the questions above, together with any relevant documents, to the respondent and to the Tribunal by February 19, 2010.

14The parties are also reminded that the Tribunal has a Policy on Accessibility and Accommodation, should this be required. The Policy is available on the Tribunal’s website. To assist the applicant a copy will be provided to him.

15After receiving and considering the applicant’s submissions, the Tribunal may request submissions from the respondent. If the Tribunal decides to seek submissions from the respondent it may consider a request from the applicant to have the opportunity to provide oral submissions.