Carolyn Fisher v. York University, 2010 HRTO 309

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carolyn Fisher

Applicant

-and-

York University

Respondent

reconSideration DECISION

Adjudicator: David Muir

Date: February 10, 2010

Citation: 2010 HRTO 309

Indexed as: Fisher v. York University

1This is an Application filed on February 18, 2009 pursuant to section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On December 5, 2008, the applicant filed a request for reconsideration under section 45.7 of the Code.

45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

3The Tribunal’s Rules for Transitional Applications provide that any party may request reconsideration of a final decision. Rule 25.5 provides:

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.

4The applicant seeks reconsideration of 2009 HRTO 1926 which confirmed an oral decision dismissing the Application when the applicant did not appear at the hearing. The applicant makes the Request on the basis that she made efforts to be at the hearing but for reasons beyond her control she was unable to arrive on time or to advise the Tribunal or the respondents of her difficulties prior to the hearing concluding. The respondent opposes the Request.

5The applicant states that she had a non-revenue ticket for a flight from her home to New York on November 5, 2009, the day before the scheduled hearing. Presumably because it was a non-revenue ticket she was unable to get on her intended flight as it was full. The applicant states that her luggage was sent on its way to New York without her.

6The applicant states that she tried to make alternative arrangements but for reasons that she does not state precisely the airline would not release the tickets to her. The applicant states that this predicament was beyond her control and was contingent “upon interdepartmental procedures in finance, reservation, and ticketing” which prevented her from arriving at La Guardia to make her connecting flight. It appears, based on a letter from the airline that the applicant provided, her explanation refers to errors made by her credit card company.

7The applicant states that she could not contact the Tribunal because by the time it was clear that she would not make her connection through New York it was 3:47 Arizona Time and the Tribunal would be closed. The applicant flew to Chicago hoping to catch an early flight to Toronto on the morning of November 6. The applicant states that there was no opportunity to telephone the Tribunal before her flight from Chicago the next day. As a result of further problems which she states were beyond her control, she only arrived in Toronto about 11:00 a.m. and contacted the Tribunal shortly thereafter.

8The respondent disputes the applicant’s assertion that there was no means of her contacting the Tribunal at any time prior to the hearing beginning. The respondent asserts that the applicant had a cell phone and used it to contact Dr. Wilchesky, an employee of the respondent, at about 11:30 a.m. on November 6^th. The respondent asserts that the applicant could have left a message with the Tribunal, or if it does not have a voice messaging system, with either counsel or Dr. Wilchesky either or both of whom could have alerted the Tribunal and other parties. The respondent also states that the applicant knows local counsel whom she could have contacted and asked him to alert the Tribunal and respondents to the fact that she was having difficulty getting to Toronto.

9There are many things that Ms. Fisher ought to have done and equally not done. In this regard, it was perhaps not a prudent choice to rely upon a non-revenue ticket for such a trip. However, it remains that she made a good faith attempt to get here on time and in fact did arrive in Toronto although not before the hearing had concluded. I find therefore that the public interest in finality in Tribunal decision making is outweighed by the particular circumstances of this case. The Request for Reconsideration is granted and the hearing will be re-scheduled. The parties will advise the Tribunal of their availability for a one day hearing in June 2010.

10I am not seized of this matter.