Lacourciere v. Starkman, 2011 HRTO 1921

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brigitte Lacourciere

Applicant

-and-

Steven Starkman

Respondent

RECONSIDERATION DECISION

Adjudicator: Douglas Sanderson

Date: October 25, 2011

Citation: 2011 HRTO 1921

Indexed as: Lacourciere v. Starkman

WRITTEN SUBMISSIONS BY

Brigitte Lacourciere, Applicant ) Self Represented

Steven Starkman, Respondent ) Self Represented

1The applicant requests Reconsideration of the Tribunal’s Decision of August 19, 2011, 2011 HRTO 1553 dismissing this Application as abandoned.

2The Decision reads as follows

1This is an Application alleging discrimination in employment because of disability, sexual solicitation or advances, family status, marital status and age contrary to the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the “Code”). The Tribunal scheduled a hearing for August 17 and 18, 2011 commencing at 9:30 a.m. at the Tribunal’s hearing centre in Toronto.

2The applicant was not present at the hearing on August 17, 2011. In accordance with its usual practice, the Tribunal waited until 10:05 a.m. before proceeding.

3I am satisfied that the applicant had notice of the hearing. The Tribunal sent a Notice of Confirmation of Hearing to the applicant’s address listed in the Application and the document was not returned to the Tribunal. In fact, the applicant wrote to the Tribunal on March 31, 2011 to confirm she would attend the hearing.

4In view of the applicant’s non-attendance, the Application is hereby dismissed.

3The 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.

The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

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.

4The applicant filed a Request for Reconsideration on September 15, 2011 and relies upon Rule 26.5(a-d). She states that she made an “error in the day of the week”, as she had to go to Etobicoke for her paycheque “mixing up Wednesday and Thursday”. She also stated that she was under duress because she was planning a trip to Los Angeles between August 30 and September 3, 2011 because of a court date in the United States regarding a family law matter. The applicant’s explanation that she made an error regarding the date of the hearing is supported by the fact that she attended at the Tribunal’s hearing centre on August 18, 2011. Upon learning that she should have attended the previous day, she apparently drafted and delivered a letter to the Tribunal staff. The letter explained that she accidentally missed the hearing due to stress caused by family issues. In a letter to the Tribunal, dated August 19, 2011, the applicant explained that she had been “working too much “temporary” work for holidays for other employees” (her emphasis), had to pick up her paycheque because of the postal strike and had expected a Mr. Lessard to remind her of the hearing date. She stated that the combination of fatigue, the postal strike and the need to coordinate a trip to the U.S.A. contributed to her error.

5The Request for Reconsideration is dismissed. The essence of the applicant’s submission is that she forgot about the hearing date because of a variety of issues requiring her attention at the time. I accept that the applicant did not attend on August 17, 2011 because she made a mistake regarding the commencement date of the hearing. The applicant suggests she was under “duress” but provided no medical or other evidence suggesting that her mistake was related to a health issue or other factor beyond her control. It may be that she asked someone to remind her of the hearing date, but she was responsible for the conduct of her Application, including attending the hearing. In my view, there is nothing in the Request for Reconsideration that establishes a compelling explanation for failing to attend the hearing on the scheduled day. Therefore, the applicant has not identified any new facts or evidence that could potentially be determinative of the matter.

6In her Request for Reconsideration the applicant indicated she was “entitled to notice but, through no fault of her own, did not receive notice of the proceeding or a hearing”, pursuant to Rule 26.5(b). In dismissing the Application, I specifically found that the applicant had received notice of the hearing. The applicant provided no evidence to contradict this finding; therefore, Rule 26.5(b) has no application to this matter.

7The applicant has indicated in her Request for Reconsideration that the Decision is in conflict with established case law or Tribunal procedure, but made no submission on this issue. Accordingly Rule 26.5(c) also does not apply.

8The applicant also made no submissions regarding whether the factors in this case outweigh the public interest in the finality of Tribunal decisions, but I find it appropriate to comment on this criterion. The public has a significant interest in the finality of Tribunal decisions, as do parties who appear before the Tribunal. A human rights application requires the parties to expend significant time and resources in presenting their cases. The public, through the Tribunal, also devotes significant resources to process and decide cases. Once an application is decided the parties and the public are entitled to treat the matter as closed and that no further expenditure of resources will be required. Finality encourages parties to put their best case forward and adhere to the Tribunal’s procedures, since there is little prospect of repairing deficiencies after a decision is rendered.

9In this vein, cancellation of hearing dates because an applicant fails to appear represents a significant waste of resources for the Tribunal and respondent, which is unfortunately not uncommon. The respondent in this case was put to the time and expense of preparing for the hearing and was forced to close his dental practice for two days in order to attend. The respondent should not be required to commit more time and expense, as well as being again exposed to litigation risk, short of compelling and extraordinary circumstances that do not in my view arise here. Parties must understand that failing to attend hearings will very likely have serious and final consequences for them.

10The applicant’s Request for Reconsideration fails to set out any basis for review of the Decision of the Tribunal. Accordingly, the Request for Reconsideration is dismissed.