HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mike Gothard
Applicant
-and-
Kevin Gallagher
Respondent
RECONSIDERATION DECISION
Adjudicator: Sheri D. Price
Indexed as: Gothard v. Gallagher
wRITTEN SUBMISSIONS BY
Mike Gothard, applicant ) Self-represented
Kevin Gallagher, respondent ) Ian Solomon, Counsel
INTRODUCTION
1The applicant seeks reconsideration of the Tribunal’s May 25, 2011 Decision dismissing his Application as abandoned. The Request for Reconsideration is filed pursuant to s. 45.7(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2Rule 26.5 of the Tribunal’s Rules of Procedure states that 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 Tribunal deemed the applicant to have abandoned his Application because of his failure to respond to a letter from the Tribunal. The applicant submits that the reason he did not respond to the letter was because he never received it. He requests reconsideration of the Tribunal’s May 25, 2011 decision dismissing his Application pursuant to Rule 26.5(b), above.
BACKGROUND
4The applicant filed an Application with the Tribunal under s. 34 of the Code alleging that the respondent, a supervisor with the applicant’s former employer, discriminated against him on the basis of disability with respect to employment and engaged in reprisals contrary to the Code.
5By Interim Decision dated March 5, 2009, the Tribunal deferred consideration of the Application pending the conclusion of ongoing grievance proceedings: 2009 HRTO 252. The Decision directed the parties’ attention to the process by which the Application might be reactivated before the Tribunal after the grievance proceedings had concluded.
6By March 2, 2011, the Tribunal had not received any request to reactivate the deferred Application. Accordingly, it wrote to the applicant directing that he advise whether the grievance process was still ongoing and, if so, when that process was expected to be completed. The Tribunal advised the applicant that failure to respond to the Tribunal as directed within 30 days of the date of the March 2, 2011 letter could result in his Application being dismissed as abandoned.
7The March 2, 2011 letter appears to have been sent to the applicant via regular mail to the address, which he provided to the Tribunal. That address continues to be the applicant’s current address. The March 2, 2011 letter was not returned to the Tribunal as undeliverable.
8The applicant did not respond to the Tribunal’s March 2, 2011 letter. Accordingly, by Decision dated May 25, 2011, the Tribunal dismissed the Application as abandoned: 2011 HRTO 999.
9In his Request for Reconsideration, the applicant submits that he never received the Tribunal’s March 2, 2011 correspondence and that he would have responded to it immediately if he had. The applicant submits that he had no desire to abandon his Application. He also submits that the grievance arbitration hearing process to which the Tribunal deferred is ongoing. The arbitration hearing in respect of his November 2008 grievances concluded in January 2011 and the applicant is awaiting the arbitrator’s decision.
ANALYSIS AND DECISION
10I am satisfied that the applicant’s Request for Reconsideration ought to be granted pursuant to Rule 26.5(b) of the Rules of Procedure.
11Although as the respondent points out, when a document is sent by regular mail to the address provided by a party, and the document is not returned to the Tribunal as undeliverable, there is a presumption that the document has been successfully delivered to the party. However, this presumption can be rebutted by evidence that despite the fact the document appears to have been sent to a party and not returned to the Tribunal, it was not received by the party.
12In this case, the applicant submits that he did not receive the Tribunal’s March 2, 2011 letter and that, if he did, he would have responded to it immediately because he had no desire to abandon his Application.
13The respondent submits that the applicant has not provided any information or evidence in support of his contention that he did not receive the Tribunal’s March 2, 2011 letter. While that is true, it is difficult to see what sort of evidence or information the applicant could submit to establish that he did not receive something, other than providing his own statement to that effect. Although in certain cases there might be good reason to question an applicant’s unsupported assertion that he did not receive something sent to him by the Tribunal, there is nothing before me in this case which leads me to reject the applicant’s assertion that he did not respond to the Tribunal’s March 2, 2011 letter because he did not receive it.
14In determining this Request, I am also mindful of the fact that the Application in this case was dismissed because it was deemed to have been abandoned by the applicant. The Application was not dismissed because of the applicant’s failure to respond to the March 2, 2011 letter as some sort of remedial or corrective measure by the Tribunal. On the contrary, the Tribunal dismissed the Application because it concluded that the applicant himself did not intend to pursue it. However reasonable that conclusion may have been on the basis of the record at that time, on the basis of the information now before me, I am satisfied that the applicant did not in fact intend to abandon his Application, as previously thought.
15In sum, I am satisfied based on the material before me that the applicant did not intend to abandon his Application before the Tribunal. Rather, the available information indicates that the applicant did not respond to the Tribunal’s March 2, 2011 letter because he did not receive it, through no fault of his own. In the circumstances, I am satisfied that this is an appropriate case in which to exercise my discretion to grant the applicant’s Request for Reconsideration pursuant to Rule 26.5(b).
16The applicant’s Request for Reconsideration of the May 25, 2011 Decision is granted. The status of the Application is that it continues to be deferred pending the conclusion of grievance arbitration proceedings in respect of the applicant’s November 2008 grievances (i.e. the arbitrator’s decision).
17The parties are reminded that the Application may be reactivated no later than within 60 days of the date on which the other proceeding is concluded, according to the process outlined in Rule 14 of the Tribunal’s Rules of Procedure.
18The “Rules of Procedure Governing Part IV Applications” are available at www.hrto.ca under “New Applications”.
19Dated at Toronto, this 28^th^ day of September, 2011.
“Signed by”
Sheri D. Price
Vice-chair