Shahenaz Alibhai v. Aditya Birla Minacs Worldwide Inc., 2011 HRTO 2219

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shahenaz Alibhai

Applicant

-and-

Aditya Birla Minacs Worldwide Inc.

Respondent

Reconsideration DecisION

Adjudicator: David Muir

Date: December 8, 2011

Citation: 2011 HRTO 2219

Indexed as: Alibhai v. Aditya Birla Minacs Worldwide

1This is an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”) filed March 11, 2011. In an Interim Decision 2011 HRTO 2048 (the “Interim Decision”) I granted the respondent’s Request that the individual respondent be removed from the Application as well as a Request that the allegation of age discrimination be dismissed on the basis that the applicant had failed to plead any material facts that would support a finding of such discrimination on the basis of age.

BACKGROUND

2In order to ensure the fair, just and expeditious adjudication of this Application the Tribunal had directed in a Case Assessment Direction dated September 9, 2011 that the respondent deliver and file a Request for Order During Proceedings (“Request”) within 20 days of the date of the Case Assessment Direction with respect to the issues outlined above. The respondent did so and filed a Statement of Delivery indicating that the respondent’s counsel sent the Request to the applicant via email. The applicant did not respond to the Request.

REQUEST FOR RECONSIDERATION

3The applicant has filed a Request for Reconsideration of the Interim Decision on the basis that she was entitled to notice but through no fault of her own did not receive notice of the proceeding respondent’s Request to remove the individual respondent and dismiss the allegation of age discrimination. The applicant had previously indicated her agreement that the individual respondent be removed from the Application on the satisfaction of certain conditions. The applicant continues to assert that the Application should include an allegation of age discrimination.

ANALYSIS AND FINDING

4Under 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.

5The Tribunal has issued Rules governing such requests, as well as a Practice Direction, to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008). Most relevant to this Decision is Rule 26 which states:

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.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

7Having regard to Rule 26.5(b) the Request for Reconsideration is granted and the Tribunal’s Interim Decision, 2011 HRTO 2048, is set aside. . I find that the applicant through no fault of her own did not receive the respondent’s Request and did not have an opportunity to respond to it prior to the Interim Decision being released. The applicant communicated with the Tribunal on October 26, 2011 to provide new contact information. On October 30, 2011 the applicant wrote again to advised that she had received no communication with respect to this Application since the Case Assessment Direction of September 9, 2011. The Tribunal provided the applicant with a copy of the respondent’s Request on October 31, 2011 and extended her time to respond to it to November 14, 2011. The Interim Decision was released on November 9, 2011 before the applicant had responded to the Request.

NEXT STEPS

8If the applicant has any further submissions to make in response to the respondent’s Request that the individual respondent be removed from the Application as well as the Request that the allegation of age discrimination be dismissed on the basis that the applicant had failed to plead any material facts that would support a finding of such discrimination on the basis of age, she will deliver and file such submissions within 30 days of the date of this Reconsideration Decision.

9The Tribunal may determine these issues on the basis of the written submissions of the parties. If the Tribunal determines that oral submissions are appropriate the Tribunal will contact the parties to schedule a telephone conference call to deal with these issues.

10I am not seized.