Mason v. Peel Heating Service Experts, 2011 HRTO 1530

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Mason

Applicant

-and-

Peel Heating Service Experts

Respondent

RECONSIDERATION DECISION

Adjudicator: Kathleen Martin

Date: August 16, 2011

Citation: 2011 HRTO 1530

Indexed as: Mason v. Peel Heating Service Experts

WRITTEN SUBMISSIONS

David Mason, Applicant ) Self-represented

Pell Heating Service Experts, Respondent ) Gita Anand, Counsel

1The applicant seeks reconsideration of the Tribunal’s Decision of November 1, 2010 (2010 HRTO 2261) (the “Request”). The Application was dismissed on the basis that the applicant was deemed to have abandoned the Application after he failed to attend a scheduled mediation on October 4, 2010, did not ask seek an adjournment of the mediation and did not respond to the Tribunal’s correspondence of October 21, 2010, seeking his intentions with respect to the Application.

2The circumstances in which reconsideration may be granted are set out in Rule 26.5:

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.

3The applicant relies on 26.5 (b) and (c) in support of his Request.

4The Request was served on the respondent.

5Further, in two Case Assessment Directions dated March 7, 2011, and June 6, 2011, the Tribunal sought additional submissions from the applicant and respondent.

6In his initial Request, the applicant’s reasons and representations in support were limited to the following:

You filed a mediation when i said several times i don’t want one, therefore i did not show up. this is your mistake

7However, in further submissions, the applicant referred to having phoned the Tribunal to say that he was not attending the mediation and that he wanted a hearing, which he was told was going to happen.

8In the Case Assessment Direction dated June 6, 2011, the Tribunal stated:

A further review of the Tribunal’s file indicated that there had been telephone and email contact with the applicant after the Tribunal’s letter of October 21, 2010 (seeking the applicant’s intentions). In particular, on November 9, 2010, the applicant contacted Tribunal staff by telephone and advised that he wanted his file forwarded to hearing. Tribunal staff advised the applicant by email that he should provide the Tribunal with updated contact information and put in writing whether he would like to proceed with mediation or have the Tribunal forward the Application to hearing. While the applicant provided a new telephone number, he did not put in writing his specific request. Through administrative inadvertence, the record of telephone and email contact was not in the file at the time the Decision was written dismissing the Application.

Having regard to the foregoing, the applicant is directed to explain in writing why he did not put in writing his specific request for a hearing. The applicant’s explanation should be filed with the Tribunal, with a copy to the respondent, by June 20, 2011.

The respondent is directed to provide any further response to the Request for Reconsideration by June 27, 2011. In its submissions, the respondent should specifically address whether it continues to object to the Request and the reasons for its position in this regard.

9The respondent states that it opposes the Request. The respondent submits that the applicant has not followed the direction of the Tribunal to place his request in writing following the contact with Tribunal staff on November 9, 2010, nor to provide an explanation in writing in response to the recent Case Assessment Direction. The respondent argues that the applicant has failed to provide any compelling and extraordinary reasons for granting the Request and suggests that granting the Request would cause prejudice and be an abuse of process.

10I am satisfied that this is a case in which it is appropriate for the Tribunal to exercise its discretion to grant the Request for Reconsideration. There was material evidence that went to the central reason for the dismissal of this application that was not before me at the time the abandonment decision was determined; namely, a record of telephone and email contact.

11I am also satisfied that the parties have had sufficient opportunity to make submissions on the substance of the Reconsideration Request and I am able to decide the substantive aspect of the Request.

12The applicant’s request that the dismissal be set aside is granted.

13I agree with the respondent that the applicant has not consistently followed the Tribunal’s directions. However, I do not find that this conduct alone is critical to my determination of the Request. As is apparent from the foregoing review, there had been email and telephone contact from the applicant after the Tribunal’s letter of October 21, 2010 (seeking the applicant’s intentions). Accordingly, the basis for dismissing the Application – that of a deemed abandonment based on the absence of contact – was incorrect. In these circumstances, I find it is appropriate to set aside the Tribunal’s Decision to dismiss the Application.

14While the respondent cites prejudice, there are no particulars provided as to how the respondent has been or will be prejudiced. Moreover, while the respondent suggests that to grant reconsideration would be an abuse of process, the respondent does not explain the basis for such a submission, although I presume it relates at least in part to the applicant’s intermittent compliance with the Tribunal’s directions. Ultimately, abuse of process is a separate basis upon which an application might be dismissed. However, abuse of process was not the basis of the Tribunal’s November 1, 2010 dismissal decision and in my view, cannot in these circumstances now provide the basis for upholding that decision.

15I do strongly caution the applicant that he is required to consistently comply with the Tribunal’s directions. In Ouwroulis v. New Locomotion, 2009 HRTO 335, the Tribunal discussed an applicant’s responsibilities when bringing a human rights application at paragraphs 4-7 as follows:

Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.

[emphasis added]

ORDER AND DIRECTIONS

16The Request for Reconsideration is granted. For the reasons above, the Decision dated November 1, 2010, dismissing this Application is set aside. The Application will continue to be processed. The Registrar will schedule a one-day hearing.

17The applicant is reminded of his obligations to respond to any and all Tribunal directions and to otherwise comply with his obligations as a party as set out in the Tribunal’s Rules of Procedure and as may be required and/or directed by the Tribunal.

18I am not seized.