HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Elizabeth Woodwork
Applicant
-and-
The Governing Council of the Salvation Army in Canada and Jeff Johnson
Respondents
RECONSIDERATION DECISION
Adjudicator: Brian Cook
Indexed as: Woodwork v. The Governing Council of the Salvation Army in Canada
WRITTEN SUBMISSIONS
Elizabeth Woodwork, Applicant ) Self-represented
The Governing Council of the Salvation Army )
in Canada and Jeff Johnson, Respondents ) Blair McCreadie,
) Counsel
1On June 10, 2011, the Tribunal issued its Decision in this Application, 2011 HRTO 1043 (the “Decision”), dismissing the Application as abandoned. The applicant has asked the Tribunal to reconsider its Decision. The applicant submits that she did not abandon the Application. The respondents oppose the applicant’s Request for Reconsideration.
2The Application was filed on June 4, 2010. It alleged discrimination on the basis of disability, creed, receipt of public assistance and reprisal contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”).
3In a Case Assessment Direction dated September 16, 2010, the Tribunal ordered that a summary hearing be held on whether the Application has a reasonable prospect of success.
4As discussed in the Decision, a number of issues arose in respect of the scheduling of the summary hearing. The applicant initially asked that the summary hearing be decided on the basis of written submissions and then required time extensions to allow her to prepare her submissions. She then asked that an oral hearing be scheduled. A summary hearing by telephone conference call was scheduled for March 25, 2011 but was adjourned to May 31, 2011. Less than two weeks before the hearing, the applicant requested the date be moved to a day earlier, May 30, 2011, due to her stated unavailability on May 31, 2011. The hearing was re-scheduled for 1:30 pm on May 30, 2011.
5On the day of the hearing, the respondents and respondents’ counsel attended by way of conference call at the allotted time. The applicant did not attend.
6After waiting 30 minutes and verifying that she had been properly notified of the hearing date and that no communication had been received from the applicant on the morning of the hearing, the Vice-chair invited the respondents to make submissions on how to proceed.
7The Decision set out the submissions and the Vice-chair’s conclusions:
Counsel for the respondents requested that the Application be dismissed as abandoned by the applicant. In support of this request, counsel argued that the applicant had ample time to prepare, had sought and been granted time extensions to file her materials, had been accommodated in the scheduling date, and had specifically asked for an oral hearing even though the Tribunal had initially agreed to hear the preliminary issues in writing only. In short, the respondents argued, the hearing was tailored to the applicant’s needs and she had every reason to attend. Her failure to attend could only mean that she had abandoned the process.
On the basis of the information in the file and the respondents’ submissions, I granted the request and dismissed the case orally, finding that the applicant had full notice and opportunity to prepare for the summary hearing. She has, in the past, demonstrated an ability to communicate with the Tribunal in respect of deadlines and procedures, yet appeared not to have done so on this occasion. The date had been scheduled in response to a specific request from the applicant, and then she did not attend and did not ask for an adjournment. On that basis, I found that the applicant had abandoned her Application and I dismissed the case.
8The Decision noted the subsequent developments and his findings about those developments:
Later in the day, it came to the Tribunal’s attention that the applicant had faxed a note to the Tribunal in the early afternoon of May 30, 2011, requesting that the Tribunal phone her to enable her participation in the summary hearing. She appeared to be under the misapprehension that the summary hearing was scheduled for the next day, May 31, 2011, despite having previously informed the Tribunal that she was unavailable on the 31st and having requested the summary hearing be re-scheduled to the 30th. The applicant did not provide any explanation.
Then on May 31, 2011, in correspondence received on June 3, 2011, the applicant provided an explanation for her failure to attend the summary hearing and pleaded for the Tribunal’s indulgence. Such representations, which provide new information in support of a request to vary an order, are best provided in the form of a Request for Reconsideration (Rule 26 of the Tribunal’s Rules of Procedure). Instructions and the necessary forms are available on the Tribunal’s website: www.hrto.on.ca. If the applicant wishes to file a Request for Reconsideration, Rule 26 requires that the Request be delivered to the respondent and filed with the Tribunal within 30 days from the date of this Decision. The Request should detail the reason(s) for her failure to attend the summary hearing. If the applicant files a Request for Reconsideration, the Tribunal will then determine whether a response from the respondent will be required.
9The applicant then filed the Request for Reconsideration (the “Request”) that is the subject of this Decision. The Request is set out in a Request for Reconsideration (Form 20) and includes various letters prepared by the applicant. The Request was sent to the respondents. The respondents filed a Response to the Request, opposing the Request.
THE REQUEST FOR RECONSIDERATION
10The applicant sent several notes and letters to the Tribunal on and about May 31, 2011, expressing her apologies for missing the conference call. She acknowledged that the conference call had been changed to May 30, 2011 at her request but indicated that she got confused because of her disabilities. She indicated that she was very upset when she realized her error.
11The applicant provided copies of various medical notes that were mostly already part of the Tribunal’s file. These confirm that the applicant has a learning disability and “a memory impairment”.
12In its Response to the Request the respondents indicate that they oppose the Request. The respondents note that in the Tribunal’s Practice Direction on Reconsideration the Tribunal is clear that a Decision will only be reconsidered in exceptional circumstances. The respondents note that, in this case, the conference call was rescheduled at the applicant’s request and to the date and time that she requested.
DECISION
13In this case, since the hearing had been scheduled at the date and time requested by the applicant, her failure to attend indicated that she had abandoned the Application. The Vice-chair dismissed the Application on that basis during the telephone conference call hearing. As indicated in the Decision, since the Vice-chair had dismissed the Application during the telephone conference call hearing, that decision could only be changed through a Request for Reconsideration.
14Under 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 of Procedure:
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.
15The 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.
16Generally, 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.
17In the present case, I am satisfied that factors exist that outweigh the public interest in the finality of Tribunal decisions. In considering the information provided by the applicant, including the medical information from her doctors, I am satisfied that the applicant did not intend to abandon the Application. I accept that she has a medical condition that at least contributed to confusion on her part regarding the date of the hearing and that this explains her failure to attend the conference call hearing. In these circumstances, I find that it is appropriate to grant the Request to Reconsider the Decision.
ORDER AND DIRECTIONS
18The applicant’s Request is granted, and the Tribunal’s Decision, 2011 HRTO 1043, dismissing the Application, is set aside.
19The Tribunal will schedule another telephone conference call summary hearing to hear submissions from the parties on whether the Application has a reasonable prospect of success.
20Given the history of this case, the applicant is cautioned that unless there are exceptional circumstances, a failure to attend the summary hearing or a request by the applicant that the summary hearing be re-scheduled may cause the Tribunal to consider if the Application should be dismissed because the applicant may be abusing the Tribunal’s process. Alternatively, a failure to attend or a request by the applicant to re-schedule the summary hearing, in the absence of exceptional circumstances, may cause the Tribunal to decide the summary hearing on the basis of the material already in the file.
Dated at Toronto, this 26th day of October, 2011.
”signed by”______
Brian Cook
Vice-chair