Cross v. Quinte Healthcare Corporation, 2011 HRTO 1866

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lori Cross

Applicant

-and-

Quinte Healthcare Corporation

Respondent

RECONSIDERATION DECISION

Adjudicator: Brian Eyolfson

Date: October 14, 2011

Citation: 2011 HRTO 1866

Indexed as: Cross v. Quinte Healthcare Corporation

1On July 4, 2011, the Tribunal issued a Decision in this matter, 2011 HRTO 1269, dismissing the Application as abandoned. The applicant has asked the Tribunal to reconsider its Decision.

background

2On January 5, 2010, the Tribunal issued an Interim Decision, 2010 HRTO 17, deferring the Application until the conclusion of a grievance arbitration process.

3On May 2, 2011, the Tribunal wrote to the applicant, asking that she advise the Tribunal, in writing, of the status of the grievance arbitration process, within 30 days of the date of the letter. The Tribunal’s letter warned the applicant that a failure to provide the requested information might result in the Tribunal dismissing the Application as abandoned.

4On July 4, 2011, the Tribunal issued its Decision, deeming the applicant to have abandoned her Application, as the applicant had not responded to the Tribunal’s letter, nor had the Tribunal’s letter to the applicant been returned as undeliverable.

THE REQUEST FOR RECONSIDERATION

5On July 18, 2011, the applicant, through her counsel, filed a Request for Reconsideration (“Request”). The applicant’s counsel explains in the Request that the Tribunal’s May 2, 2011 letter was sent to both the applicant and counsel by email; however, due to counsel’s absence from the office, the Tribunal’s email to her was overlooked. Counsel also explains that the Tribunal’s email escaped her assistant’s attention. As a result, the Tribunal’s email did not come to counsel’s attention until the Tribunal’s July 4, 2011 Decision was received. Counsel also explains that the email to the applicant did not come to the applicant’s attention until July 14, 2011, when counsel asked her to look for it in her email. It is submitted in the Request that the applicant has not abandoned this matter, and that the grievance arbitration process has not finalized.

6On August 18, 2011, the respondent provided a Response to the applicant’s Request, indicating that it takes no position on the Request, other than to state that the onus lies upon the applicant to establish that the Request falls within the provisions of Rule 26.5 of the Tribunal’s Rules of Procedure.

DECISION

7Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules:

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

8The Tribunal has issued Rules governing reconsideration requests. Rules 26.1 and 26.5 of the Tribunal’s Rules state as follows:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

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.

9The applicant relies upon subsections (a), (b) and (d) of Rule 26.5, above.

10In the present case, I am satisfied that factors exist that outweigh the public interest in the finality of Tribunal decisions. The Application was deferred at an early stage, pending the conclusion of a grievance arbitration process. In email correspondence to the applicant and her counsel, the Tribunal sought an update as to the status of the grievance arbitration process; however, as the applicant’s counsel explains, through a “confluence of inadvertence” in her office and on the part of the applicant, the Tribunal’s email communication did not come to their attention until after receipt of the Tribunal’s July 4, 2011 Decision dismissing the Application as abandoned. I also note that the Application indicates that the best way to send information to both the applicant and her counsel is by regular mail. It is also clear, based on the applicant’s Request, that the grievance arbitration process has not concluded.

11In all of the circumstances, I am satisfied that the applicant did not intend to abandon her Application with the Tribunal, and there is no apparent prejudice to the respondent. The applicant’s Request is therefore granted, and the Tribunal’s Decision, 2011 HRTO 1269, dismissing the Application is set aside.

12With respect to the grievance arbitration process, the applicant indicated in her Request that it is expected that matters can be resolved through that process, and that the arbitrator remains seized. The Application will, therefore, continue to be deferred.

13The Tribunal again directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules, which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. If the grievance process has already concluded as of the date of this Reconsideration Decision, the applicant may make a request that the Tribunal proceed with the Application within 60 days of the date of this Reconsideration Decision.