Christianson v. Special Investigations Unit, 2010 HRTO 406

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Christianson

Applicant

-and-

Special Investigations Unit and Steve Gibbons

Respondents

RECONSIDERATION DECISION

Adjudicator: Naomi Overend

Date: February 22, 2010

Citation: 2010 HRTO 406

Indexed as: Christianson v. Special Investigations Unit

1On October 10, 2009, the applicant, Michael Christianson, filed a Request for Reconsideration (Form 20) (“Reconsideration Request”) from a Decision released by the Tribunal on September 23, 2009, 2009 HRTO 1535. That Decision dismissed the Application on the basis that it was deemed abandoned after the applicant failed to attend a September 11, 2009 in-person proceeding. In his Reconsideration Request, the applicant noted, among other things, that he had not received notice of the proceeding or hearing.

2In light of some confusion with respect to whether the applicant had received notice, discussed in greater detail below, the Tribunal issued an Interim Decision on January 5, 2010, 2010 HRTO 8, asking the parties to provide submissions on the Reconsideration Request. Both the applicant and the respondents provided further submissions on January 19, 2010.

FACTUAL BACKGROUND

3The applicant filed his Application on November 17, 2008 under section 34 of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). A Notice of Hearing (“Notice”) was sent to the parties on May 20, 2009, advising them that the hearing in this matter would take place on September 11, 2009, in Windsor, commencing at 10:00 a.m. The Notice was sent by ordinary mail to the applicant at the address provided by him in his Application (651 South Street) and was not returned.

4The applicant takes the position in his January 19, 2010 submissions on the Reconsideration Request that he had advised the Registrar of the Tribunal on January 23, 2009 by email that “correspondence was no longer being accepted at the 651 South Street address.” In fact, the email attachment from the applicant asks the Registrar to “not send any more deliveries by courier to [his] residential address at 651 South Street” [emphasis added]. There is no suggestion that the applicant would not be receiving correspondence sent to him by ordinary mail at that address.

5On July 29, 2009, after the Notice of Hearing was sent, the respondents filed a Request for Order During Proceedings (Form 10) (“Request”) asking the Tribunal to dismiss the Application as being outside its jurisdiction, among other things. The respondents requested that this Request be dealt with in writing. The applicant did not file a Response to the Request, a decision which he suggests in his Reconsideration Request was deliberate.

6The respondents followed up via email, copied to the applicant, to enquire about the status of their Request on August 31, 2009. By Case Assessment Direction (“CAD”), dated September 2, 2009, I advised the parties that I would use the September 11, 2009 hearing date to hear oral submissions on the respondents’ Request. The applicant asserts he did not receive a copy of the CAD in a timely fashion, an assertion which appears to be correct.

7The CAD was sent to the applicant at the 651 South Street address provided by him in his Application via courier. Tracking information indicates that the package was picked up on September 3, 2009 and delivery attempted on September 4, 2009. The tracking information also indicates that the package was available for pick-up at the Windsor Purolator depot from September 5, 2009 through to September 15, 2009. The package containing the CAD was returned to the Tribunal on September 16, 2009, but was not, however, put with the file.

8In his Reconsideration Request, the applicant states that the CAD was mailed to him on September 9, 2009, to a different address, and that the applicant received it after the September 11, 2009 proceeding. However, there is no indication in the file that there was ever any attempt to mail the CAD to the applicant on that date (or any other) or at that address.

DECISION AND ANALYSIS

9Under section 45.7 of the Ontario Human Rights Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules of Procedure. The most relevant Tribunal Rule in this case is Rule 26 which reads, in part, 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 and orders.

10Although the applicant states that he fully expected that the Tribunal would communicate the date of the hearing to him via email, he does not at any point state that he did not receive the Notice of Hearing sent to him indicating that the hearing would take place on September 11, 2009. His position that he would have expected the adjudicator to communicate with him directly by phone or voice-mail the day prior to the hearing is unreasonable, as this is not the Tribunal’s practice.

11However, it would appear that the intervening service of the respondents’ Request for Order, as well as their follow-up emails to the Registrar could well have created some confusion with respect to whether any previously scheduled hearing would proceed. Moreover, this confusion would have been compounded by the fact that the applicant did not receive a copy of the CAD indicating what was to take place on the date previously scheduled for the hearing on the Application’s merits.

12Accordingly, I find that the criterion set out in Rule 26.5(b) has been met, and would allow the Reconsideration on that basis.

NEXT STEPS

13The respondent’s Request for Order remains outstanding. The Tribunal will deal with this Request in writing. The applicant is directed to provide any Response to the Request for Order (Form 11) within 21 days of the date of this Reconsideration Decision. In the event that the applicant files such submissions, the respondents may submit written submissions in reply within 14 days of the receipt of the applicant’s Form 11.