Prescod v. National Steel Car Limited, 2011 HRTO 1870

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Orlando Prescod

Applicant

-and-

National Steel Car Limited

Respondent

RECONSIDERATION DECISION

Adjudicator: Brian Eyolfson

Date: October 17, 2011

Citation: 2011 HRTO 1870

Indexed as: Prescod v. National Steel Car Limited

1On May 25, 2011, the Tribunal issued a Decision in this matter, 2011 HRTO 983, dismissing the Application as abandoned. The applicant has asked the Tribunal to reconsider its Decision.

background

2On April 6, 2011, the Tribunal issued a Notice of Intent to Dismiss the Application (“Notice”), indicating that it appeared the Application was outside the Tribunal’s jurisdiction because of delay. The Notice directed the applicant to provide written submissions on the issue of delay by May 6, 2011. The Notice advised the applicant that a failure to respond to the Notice might be considered an abandonment of the Application and the Application could be dismissed for that reason.

3On May 25, 2011, the Tribunal issued a Decision dismissing the Application as abandoned. In its Decision, the Tribunal indicated that the applicant had not responded to the Notice and the time for doing so had passed.

THE REQUEST FOR RECONSIDERATION

4On June 16, 2011, the applicant filed with the Tribunal, and delivered to the respondent, a Request for Reconsideration (“Request”). In his Request, the applicant submits that he did not receive a copy of the Notice. He submits that the Notice was sent to his union, and his union did not forward the Notice to him.

5On August 17, 2011, the Tribunal directed the respondent to file submissions in response to the applicant’s Request by August 31, 2011. The respondent has not provided submissions and the time for doing so has now passed.

DECISION

6Under section 45.7 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with the 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.

7The Tribunal has issued Rules governing such 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.

8In his Request, the applicant relies upon subsection (b) of Rule 26.5, above.

9From a review of the Tribunal’s file, it appears that the Tribunal’s Notice to the applicant, dated April 6, 2011, was addressed to the applicant’s union, rather than the applicant. In the circumstances, I am satisfied that the applicant, through no fault of his own, did not receive the Tribunal’s Notice, and did not intend to abandon his Application with the Tribunal.

10The applicant’s Request is granted, and the Tribunal’s Decision, 2011 HRTO 983, dismissing the Application, is set aside.

NEXT STEPS

11In his Request, the applicant indicated that he obtained a copy of the Tribunal’s April 6, 2011 Notice after he received the Tribunal’s Decision dismissing his Application. In the circumstances, the applicant has 21 days from the date of this Reconsideration Decision to respond to the issue of delay raised in the Tribunal’s April 6, 2011 Notice.

12With respect to the issue of delay, s. 34 of the Code provides as follows:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

34(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

13The Tribunal’s April 6, 2011 Notice indicated that the applicant did not identify specific incidents of discrimination that took place within a year of the date the Application was filed.

14Pursuant to s. 34 of the Code, the Tribunal does not have the power to consider claims filed more than one year after the incident of discrimination, or the last in a series of incidents of discrimination, unless the Tribunal is satisfied that the delay in filing the Application was incurred in good faith, and no substantial prejudice will result to any person affected by the delay. In his submissions, the applicant should address the issue of delay, including whether any delay was incurred in good faith and no substantial prejudice will result to any person affected by delay, within the meaning of section 34(2) of the Code.

ORDER

15The applicant’s reconsideration Request is granted. The applicant has 21 days from the date of this Reconsideration Decision to respond to the issue of delay raised in the Tribunal’s April 6, 2011 Notice and set out above.

16I am not seized.