M.K. v. 1217993 Ontario, 2011 HRTO 1362

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

M.K.

Applicant

-and-

1217993 Ontario Inc. o/a Wimpy's Diner and K.P.

Respondents

RECONSIDERATION DECISION

Adjudicator: Judith Keene

Date: July 20, 2011

Citation: 2011 HRTO 1362

Indexed as: M.K. v. 1217993 Ontario

WRITTEN SUBMISSIONS

Marija Kotevski, Applicant ) Bay Ryley, Counsel

1217993 Ontario Inc. ) Cameron R.B. Fiske, Counsel

o/a Wimpy's Diner )

and Krste Petrevski, Respondents )

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on March 8, 2010. The Application alleged discrimination and harassment in employment on the grounds of sex, and reprisal. The Notice of Application was issued on April 30, 2010. The respondents did not respond to the Application or otherwise participate in the proceedings. As further discussed below, the respondents received two Interim Decisions (respectively dated June 15, 2010 (2010 HRTO 1358) and July 16, 2010 (2010 HRTO 1548)) warning them that a failure to participate could result in findings being made against them. The respondents also received a Request for Order During Proceedings, delivered on February 14, 2011, to add 1217993 Ontario Inc. as a respondent. As a result of that Request, an updated Request for Order During Proceedings and a Case Assessment Direction giving 1217993 Ontario Inc. two weeks to respond were served on the respondents on March 9, 2011. There was no response, and 1217993 Ontario Inc. was added as a respondent.

2On April 13, 2011, following an oral hearing at which the applicant gave evidence, the Tribunal issued a Decision (2011 HRTO 705) holding that the applicant had established breaches of sections 5(1), 7(2), 8 and 9 of the Code and making remedial awards.

3On May 12, 2011, the respondents filed a Request for Reconsideration of the Tribunal’s Decision, which included an affidavit by the personal respondent. The Request was delivered to the applicant on May 18, 2011. The applicant filed a written Response to the Request. The respondents filed further written submissions after having received the Response.

4Of the Rule 26.5 criteria listed on the Request for Reconsideration form, the respondents rely upon (a): “There are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier”. The respondents argue that the decision should be reconsidered because they failed to respond or participate in the proceedings as a result of legitimate fears about the possible effect of Tribunal proceedings on criminal charges against the individual respondent. The respondents’ written submissions are based largely on decisions of courts dealing with motions under Rule 19.08 (2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as amended (“the Rules of Civil Procedure”). The applicant’s position in response is that the Rules of Civil Procedure do not govern the Tribunal’s procedure, but that even if the factors considered by the courts under those Rules were applicable, the circumstances do not warrant setting aside the Tribunal’s Decision.

5I find no basis to grant reconsideration of the Decision. My reasons are set out below.

Analysis

6Section 45.7(1) of the Code provides that “[a]ny party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules”. The Rules elaborate on the conditions and requirements of such a request. Rule 26.1 of the Tribunal’s Rules of Procedure states that “[a]ny party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days from the date of the decision”.

7Pursuant 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.

8It 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

9As noted above, the respondents have indicated that they rely on Rule 26.5 (a). I have considered this and, in addition, I have also considered Rule 26.5 (d) whether “other factors exist that…outweigh the public interest in the finality of Tribunal decisions”.

New facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier

10The test set out in Rule 26.5 (a) has two parts. The party requesting reconsideration on this basis must state what facts or evidence he or she alleges are new, and explain why the facts or evidence could not reasonably have been obtained earlier, and put forward prior to the Tribunal issuing its decision.

11In this case, the respondents’ counsel has filed two sets of submissions, as well as an Affidavit of the personal respondent, and has attached a “draft statement of defence”, but has not, in any of these documents, identified any alleged new facts. The respondents have simply repeatedly stated a position; they deny the allegations in the Application and they state that the personal respondent did not breach the Code. In the absence of any details or description whatsoever about alleged new facts or why any new facts could not have been obtained earlier, the respondents’ Request cannot succeed on this basis (see for example Fournier v. Chrysler Canada, 2009 HRTO 500; Coley v. Peel Regional Police Services Board, 2011 HRTO 1001; Hill-LeClair v. Booth, 2009 HRTO 2065).

Other factors that outweigh the public interest in the finality of Tribunal decisions

12The respondents assert that reconsideration should be granted because the respondents moved promptly to set aside the Decision, “they have a triable defence” and “there is no prejudice” to the applicant. In his submissions, counsel for the respondents has relied exclusively upon decisions of Ontario courts, most of them dealing with motions under Rule 19.08 (2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as amended, which states that “[a] judgment against the defendant… that is obtained on a motion for judgment on the statement of claim under Rule 19.05 or that is obtained after trial may be set aside or varied by a judge on such terms as are just”.

13Clearly, the grant of discretion in Rule 19.08 of the Rules of Civil Procedure is very broadly worded. Ontario Court of Appeal jurisprudence has established a three-part test, as noted in HSBC Securities (Canada) Inc. v. Firestar Capital Management Corporation, 2008 ONCA 894 at paragraph 21:

(a) Whether the motion was brought without delay after the defendant learned of the default judgment;

(b) Whether the circumstances giving rise to the default were adequately explained; and

(c) Whether the defendant has an arguable defence on the merits.

14The wording of the test in the Rule 26(5) (d) of the Tribunal’s Rules of Procedure is somewhat more specific, in that it directs the Tribunal to weigh any established “other factors” against “the public interest in the finality of Tribunal decisions”. No closed list of “factors” is given, but circumstances that result in unfairness to the party requesting the reconsideration, and prejudice to the party who obtained the original decision, are obviously relevant factors.

15In this case, the respondents have clearly had ample and clearly-worded notice of the proceedings and information concerning the consequences that would result from failure to respond. They do not deny receiving the Notice of Application issued on April 30, 2010, the two Interim Decisions (respectively dated June 15, 2010 and July 16, 2010), the further Request, delivered on February 14, 2011 to add 1217993 Ontario Inc. as a respondent, or the updated Request and Case Assessment Direction served on March 9, 2011, before 1217993 Ontario Inc. was added as a respondent. In his Affidavit, the personal respondent states that he put “all of the Human Rights Tribunal documents going back to April 2010…aside in anticipation of dealing with the matters after my criminal charges were completed.”

16In his affidavit, the personal respondent states that he asked his son to contact the Tribunal “on two separate occasions to determine what my rights were in the preceding.” He states that “my son informs me and I do verily believe that he never received a return call from the Tribunal with respect to his inquiries”. The affidavit contains no details concerning the exact dates of any phone calls, precisely what was said or the names of persons involved. The Tribunal routinely keeps records of any contact from parties to Applications or anyone claiming to be representing parties. The Tribunal has no record of any contact by the respondent, or anyone claiming to be representing him, prior to the Request for Reconsideration. In any event, even assuming that such calls were made, any failure to respond to them cannot explain why the applicant failed to take the very clear steps that were identified in the many documents that were sent by the Tribunal.

17In his affidavit, the personal respondent states “I was fearful that my words and actions in this civil proceeding could be used against me in the criminal proceeding.” It is indisputable that criminal charges are a serious concern to anyone. However, it would have been open to the respondents, under Rule 14 of the Tribunal’s Rules of Procedure, to request that the application be deferred pending the conclusion of the criminal proceeding. The Tribunal has done this on a number of occasions: see, for example Hadley v. J.A.C.S. Cartage, 2009 HRTO 516. The issue here is whether the Tribunal should reconsider a Decision where the respondents did not participate in the proceedings.

18Unlike the respondent in Taranco v. Michedes (a.k.a. Michaelides), 2011 HRTO 1188, the personal respondent did not lack resources, including access to legal advice, to respond to the Application or to request deferral without submitting a Response. Nor do there appear to be other reasons for his inaction. He states in his affidavit that he is “Macedonian and… not familiar with the civil justice system in Canada”. He does not state that he had difficulty with communication in English, and, on the evidence, he has operated a business in Ontario for over ten years. He admits in his affidavit that “I asked my criminal lawyer what I should do and he indicated that he could not help me as human rights work fell outside the bounds of his knowledge”. However, he did not retain other counsel to assist in dealing with the Application until some weeks after the Decision was issued.

19In her submissions, counsel for the applicant disputes the assertion by the respondents that the Tribunal’s Decision was “effectively a default judgement”, pointing out that there was a hearing in this matter, and that specific findings were made by the Tribunal after hearing Ms. Kotevski’s oral and documentary evidence. However she submits that, had this been a motion under Rule 19.08 (2) of the Rules of Civil Procedure, the respondents would not have been successful.

20The Rules of Civil Procedure do not apply to the Tribunal, and the Tribunal has its own set of specifically-worded Rules. I do not think that there is any reason the Tribunal should consider itself bound by courts’ interpretations of Rules that are differently worded. Having said that, Rule 26.5 (d) does not specify factors to be considered, other than the public interest in the finality of Tribunal decisions, in the weighing exercise it requires. In my view, Rule 26.5 (d) invites the Tribunal to consider the circumstances of the case before it, and there is no need to create a closed list of factors or a requirement that any particular factor must always be considered. Delay in requesting reconsideration, the adequacy of the requesting party’s explanation for failing to participate in the process and whether there is an arguable defence on the merits can be included among “other factors” appropriately considered in determining whether to grant reconsideration under Rule 26.5 (d). I have considered these factors below.

21Rule 20.1 of the Tribunal’s Rules of Procedure states that “[a]ny party may request reconsideration of a final decision of the Tribunal within 30 days from the date of the decision”. In the light of this specific provision, I do not think that any conclusions adverse to the respondent can be drawn from his delay of just under a month in filing the Request.

22I do, however, find in the circumstances of this case that the respondents have failed to provide an adequate explanation for failing to participate in the process, at least to the extent of requesting the Tribunal to defer the Application pending the criminal proceedings. Counsel for the respondents has relied upon Gorouvein v. Toronto Transit Commission, 2008 CanLII 65765 (ON SC), but in that case, the Master specifically accepted that there was a clerical error in regard to dates, and that there was no prejudice to the opposing party. Counsel for the applicant has cited Firestar (above), in which the Ontario Court of Appeal upheld the conclusion that a delay in responding to both a claim and the default judgments reflected only “inattention and inaction” and that the party in default was “effectively taking his chances with the process”. I think that this is a fair description of the approach taken by the respondents in this case.

23I also find that the respondents have not shown “an arguable defence on the merits”. As noted above, an affidavit denying a breach of the Code is the respondents’ sole submission in relation to the applicant’s evidence as discussed, and the conclusions reached, in the Decision. In Hanratty v. Woods, 2009 CanLII 43649 (ON SC), the court held that it is not sufficient on a motion to set aside to rely on mere assertions – evidence demonstrating an arguable or triable defence must be presented. The Court of Appeal in Firestar upheld the motion judge’s refusal to set aside a default judgment, in part because of their conclusion that a self-serving affidavit does not create a triable issue in the absence of detailed facts and supporting evidence (para 28).

24The respondents cite Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd., 2007 ONCA 333, in which the Ontario Court of Appeal found that the motion judge erred in treating the principles identified in the case law governing the exercise of discretion on a motion to set aside a default judgment as rigid preconditions to the exercise of that discretion, such that the failure to satisfy any one of those supposed preconditions necessitated the dismissal of the motion to set aside the default judgment. Putting aside the fact that Peterbilt deals with a motion under Rule 19.08 (2) of the Rules of Civil Procedure while this case does not, Peterbilt can be further distinguished from this case because, in addition to finding that the appellant had moved expeditiously to set aside the default judgment, the motion judge also concluded that the appellants’ default was adequately explained and attributable to miscommunication with counsel. The sole reason for denying the motion in Peterbilt was the motion judge’s conclusion that the appellants had not adequately fleshed out a defence in the affidavit filed on the motion, and that for this reason and this reason alone, the motion must be dismissed. Peterbilt does not establish that a mere denial of the allegations is sufficient to meet the third factor considered in motions under Rule 19.08 (2) of the Rules of Civil Procedure.

25Another factor I must consider is justice to the applicant, who was diligent in pursuing her Application, and who participated in a hearing, giving testimony and answering questions about incidents involving sexual harassment and their effect on her that she understandably finds upsetting to recall. Forcing the applicant to start again from the beginning with a new hearing would clearly involve hardship to her and this must be balanced against the respondents’ interests.

26Whatever the factors considered under Rule 26.5 (d) of the Tribunal’s Rules of Procedure, they must “outweigh the public interest in the finality of Tribunal decisions” for a reconsideration on this basis to be granted.

27As noted in Taranco v. Michedes, 2009 HRTO 1439 :

The public has a significant interest in the finality of Tribunal decisions, as do parties who appear before the Tribunal. When parties participate in the hearing of a Complaint before the Tribunal, they often invest significant time and resources in presenting their cases. Indeed, this is so, in part, because parties know (or ought to know) that once the Tribunal makes a decision, barring the exceptional circumstances which may justify reconsideration, the decision will be final. “Once the parties to a case have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.” (Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34).

The public also has an interest in the Tribunal expending its resources wisely and fulfilling its mandate under the Code to resolve complaints in a fair, just and expeditious manner.

(at paras 14 and 15)

28Although it could never, in my view, outweigh any real issue of fairness to the individual respondent, an additional consideration here is a systemic one. It would be wrong to send a message to respondents who simply choose not to participate despite being able to do, that they can simply sit back and await a decision, taking action only if that decision goes against their interests.

29For the reasons given above, the respondents’ Request for Reconsideration is denied.