Free v. Municipality of Magnetawan, 2010 HRTO 719

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Free

Applicant

-and-

Municipality of Magnetawan and Richard Smith

Respondents

reconsideration decision

Adjudicator: Faisal Bhabha

Date: April 7, 2010

Citation: 2010 HRTO 719

Indexed as: Free v. Magnetawan (Municipality)

BACKGROUND

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), on January 4, 2010.

2In correspondence dated January 21, 2010, the Registrar noted to the parties that the Application appears to be identical to an earlier Application filed by the applicant (Tribunal File 2009-02691-I), which was dismissed by the Tribunal in Free v. Magnetawan (Municipality), 2009 HRTO 1621 on the basis of section 34(11) because the applicant had an existing civil claim in the courts seeking damages for discrimination.

3In filing the current Application, the applicant attached a document entitled “Fresh as Amended Statement of Claim”. The document is dated November 25, 2009, but does not appear to have been stamped and issued by the Court. The document appears to be substantially similar to the original Statement of Claim referred to in 2009 HRTO 1621, with the exception being that references to discrimination have been removed.

4The Registrar requested submissions from the applicant responding to the following questions: (1) whether the “fresh as amended statement of claim” has been issued and served on the respondents; (2) was the amendment made before the close of pleadings; (3) if made after the close of pleadings, did the respondents consent to the amendments; and (4) if no consent was provided, was leave to amend provided by the court?

5The Registrar’s letter also established a timeline for receipt of submissions, failing which the applicant was cautioned that the Tribunal may dismiss the Application as abandoned. The applicant’s deadline for filing submissions was January 28, 2010. None were received.

6In a Decision, 2010 HRTO 431, dated February 26, 2010, the Tribunal dismissed the Application as abandoned.

7On March 1, 2010, the applicant contacted the Tribunal to advise that he had not received the Registrar’s January 21, 2010 letter. On March 20, 2010, he filed a Form 20 (Request for Reconsideration). In submissions in support of his Request, the applicant states that he was hospitalized January 17-22, 2010 and was bed-ridden for a week thereafter. While the Registrar’s correspondence was not returned to the Tribunal as undelivered, the applicant states that “it is possible the mail was lost or not picked up by those looking after our household affairs during that period.” He submits that had he been aware of the correspondence, he would have responded on time or made a proper request for additional time.

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.

10The applicant relies on Rule 26.5(b), arguing that through no fault of his own he did not receive notice of the proceeding – or, specifically, of the particular step in the proceeding, being the Registrar’s request for additional information.

11Pursuant to the Tribunal’s Rules, delivery of documents is presumed completed where it is sent by regular mail to the address provided by the party and is not returned as undeliverable. However, in the absence of any compelling information to the contrary, it is appropriate to accept the applicant’s explanation, which establishes extraordinary circumstances.

APPLICABILITY OF SECTION 34(11)

12In response to the Registrar’s questions, the applicant has clarified that his amended statement of claim was issued and served upon the respondents on the basis of a Court Order well in advance of the close of pleadings.

13The Tribunal has held that the purpose of section 34(11) is not to manage scarce judicial resources or to determine the appropriate forum for issues to be heard. Its sole purpose is to eliminate duplicate court and Tribunal proceedings making identical allegations in respect of the Code: Beaver v. Dr. Hans Epp Dentistry Professional Corp., 2008 HRTO 282 at para. 10. Similarity or overlap in the facts does not amount to duplication of legal issues: Baker v. Sears Canada, 2009 HRTO 1014 at para. 9.

14Having reviewed the amended statement of claim, I find that the applicant has not triggered section 34(11). While both the civil proceeding and the Application arise out of similar facts involving some of the same parties, the legal issues are clearly distinct and the amended claim does not raise the Code directly or indirectly. In the amended claim, the applicant does not cite the Code, refrains from alleging discrimination and seeks damages only for wrongful dismissal and defamation.

15It therefore appears that section 34(11) of the Code does not apply. The Registrar shall deliver the Application to the respondents and will continue to deal with the Application.