HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jeniece Nelson
Applicant
-and-
K.R. Estey Holdings Ltd. and Robert McDaid
Respondents
RECONSIDERATION DECISION
Adjudicator: Brian Eyolfson
Indexed as: Nelson v. K.R. Estey Holdings
1On May 26, 2011, the Tribunal issued a Decision in this matter, 2011 HRTO 998, dismissing the Application as abandoned. The applicant has asked the Tribunal to reconsider its Decision.
BACKGROUND
2On February 28, 2011, the Tribunal issued a Notice of Mediation to the parties confirming that mediation of the Application would take place on April 15, 2011. The Notice was mailed to the applicant’s address provided in the Application and was not returned as undeliverable.
3By letter dated April 11, 2011, the respondents requested that the April 15, 2011 mediation date be rescheduled. The respondents’ letter was not copied to the applicant.
4On April 13, 2011, the Tribunal emailed the parties, attaching a copy of the respondents’ April 11, 2011 letter, and advising the parties that the Tribunal would not reschedule the April 15, 2011 mediation. The Tribunal directed the respondents to advise the Tribunal by no later than 3:00 p.m. on April 14, 2011, whether they would attend the scheduled mediation.
5It appears from the Tribunal’s file that the Tribunal’s April 13, 2011 email to the parties was returned as undeliverable to the applicant. The Tribunal then mailed and couriered to the applicant, on April 13, 2011, a copy of the Tribunal’s April 13, 2011 email, with the respondents’ April 11, 2011 letter attached.
6On April 14, 2011, the respondents confirmed, by email to the Tribunal and the applicant, that they would attend the mediation scheduled for the following day. While the respondents attended the mediation on April 15, 2011, the applicant did not.
7On April 19, 2011, the Tribunal wrote to the applicant, directing that she advise the Tribunal and the respondents whether she intended to proceed with the Application. The letter warned the applicant that if she did not respond in writing within ten days of the date of the letter the Tribunal may deem the Application to be abandoned.
8On May 26, 2011, the Tribunal issued its Decision dismissing the Application as abandoned as the applicant had not responded to the Tribunal’s letter and the Tribunal’s letter to the applicant had not been returned as undeliverable.
THE REQUEST FOR RECONSIDERATION
9On June 2, 2011, the Tribunal received a letter from the applicant dated May 26, 2011, requesting that a new mediation date be set, “due to the confusion brought” by the respondents. The applicant refers to a “request for rescheduling” that was mailed to her home address a day before mediation was scheduled, and was not confirmed with the Tribunal’s Registrar. The applicant states that the reason for her late response was due to her not receiving “the unconfirmed answer” from the Registrar, and that she left the country for a wedding the following Monday.
10On June 17, 2011, the Tribunal received materials from the respondents dated June 15, 2011, in response to the applicant’s May 26, 2011 letter requesting a new mediation date. In their materials, the respondents submit that it appears the applicant is asserting that she has not abandoned the Application, and they oppose the applicant’s position.
11On June 30, 2011, the applicant filed a Request for Reconsideration (“Request”). The applicant submits, among other things, that she did not receive proper confirmation when sent a letter regarding rescheduling a day before the mediation. She submits that she was misinformed. She explains that, after she received a letter from the respondents stating that they could not make it to the mediation, a day before the mediation, she did not fully understand that it was not a confirmed decision. She explains that she then left the country for a family matter and received notice that her case was closed. The applicant did not indicate the duration of her travels.
12On July 19, 2011, the respondents filed materials dated July 13, 2011, in response to the applicant’s Request, submitting that the applicant’s Request should be denied. They also rely on their earlier submissions filed June 17, 2011.
13In opposing the applicant’s Request, the respondents submit that the applicant acknowledged that she received notice of the mediation scheduled for April 15, 2011, which she failed to attend. They submit that, as the Tribunal notified the applicant that the respondents’ request for rescheduling was denied, the applicant had no acceptable reason for failing to attend the mediation. They also submit that the applicant failed to respond to the Tribunal’s April 19, 2011 letter by April 29, 2011, as directed. The respondents submit that the applicant failed to give proper attention, and due consideration, to the communications that were being delivered to her.
DECISION
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:
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 states 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.
16The applicant relies, in particular, upon subsections (b) and (c) of Rule 26.5, above.
17The Application was scheduled for mediation on Friday, April 15, 2011. On April 13, 2011, the Tribunal mailed and couriered to the applicant the respondents’ request that the mediation be rescheduled, along with a copy of the Tribunal’s email indicating that the Tribunal would not reschedule the mediation. It appears from the applicant’s subsequent correspondence to the Tribunal that the applicant received these materials on April 14, 2011.
18I appreciate the respondents’ submission that the applicant received the Tribunal’s notification that their rescheduling request was denied. There is no indication, however, that the applicant ever received the respondents’ April 14, 2011 email confirmation that they would be attending the mediation the following day. It appears that, at the time, the applicant was not receiving email communications at the email address she provided.
19While it is unfortunate that the applicant did not “fully understand” that it was not a confirmed decision that the mediation would not take place when she received the April 13, 2011 correspondence from the Tribunal, there is no indication that the applicant contacted the Tribunal to seek clarification as to whether or not the mediation would take place. More importantly, with respect to the Tribunal’s Decision dismissing the Application as abandoned, there is also no indication that the applicant ever advised the Tribunal that she could not be reached through the contact information provided in her Application, or that she ever provided the Tribunal with any alternate contact information. In addition, the applicant did not inform the Tribunal that she would be out of the country and not available to receive correspondence or communications for a specific duration of time.
20Pursuant to Rule 1.13 of the Tribunal’s Rules, a party must notify the Tribunal and all parties and their representatives, in writing, of any changes in their contact information, as soon as possible. In addition, pursuant to Rule 5.4 of the Tribunal’s Rules, the Tribunal may finally determine an application without further notice to any person who cannot be contacted by the Tribunal according to the contact information provided to the Tribunal by that person. With respect to providing up-to-date contact information, the Tribunal’s Applicant’s Guide states as follows:
It is very important that you provide the Tribunal with up to date contact information. If your contact information changes, you must let the Tribunal know immediately or you may miss important information or notices about your Application. In some cases, if the Tribunal cannot contact you, your Application may be dismissed.
In the present case, the Tribunal’s Notice of Application, dated September 24, 2010, also advised the parties that if their contact information changed, they were required to advise the Tribunal immediately.
21In Ouwroulis v. New Locomotion, 2009 HRTO 335, the Tribunal discussed an applicant’s responsibilities when bringing a human rights application at paragraphs 5-7 as follows:
When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.
Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.
The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed. [emphasis added]
22In the present case, the Tribunal wrote to the applicant on April 19, 2011, directing that she advise the Tribunal and the respondents whether she intended to proceed with the Application. The letter expressly stated that if the applicant did not respond within ten days the Tribunal may deem the Application to be abandoned. As of May 26, 2011, the applicant had not responded to the Tribunal’s April 19, 2011 letter. In the circumstances, the applicant was deemed to have abandoned the Application and the Application was dismissed.
23With respect to the applicant not responding to the Tribunal’s April 19, 2011 letter, as directed, I note that the applicant submits that she left the country for a wedding the Monday following the scheduled mediation, which would have been April 18, 2011. While the applicant indicated that being out of the country was one of the reasons for her late response to the Tribunal, the applicant did not indicate how long she was out of the country or when she returned.
24Assuming that the applicant was out of the country for an extended period of time, she nevertheless failed to provide the Tribunal and the respondents with any up-to-date information whatsoever concerning her contact information. While the Tribunal directed the applicant to respond to its April 19, 2011 letter by April 29, 2011, the Tribunal’s Decision deeming the applicant to have abandoned her Application was not made until May 26, 2011, at which time the Tribunal had still not heard from the applicant. The Tribunal did not hear from the applicant until June 2, 2011, more than six weeks after the Tribunal’s April 19, 2011 letter, and after the Tribunal’s Decision dismissing the Application as abandoned was issued.
25In my view, in the present case, it cannot be said that the applicant did not receive notice of the Tribunal’s proceedings through no fault of her own. While I appreciate that the applicant may not have fully understood that the April 15, 2011 mediation was not cancelled, the applicant did not contact the Tribunal for clarification, did not attend the mediation, and subsequently left the country without providing any information to the Tribunal and the respondents with respect to her contact information.
26While the applicant clearly disagrees with the Tribunal’s Decision, I am also not satisfied that the applicant has established that the Tribunal’s Decision is in conflict with established jurisprudence.
27In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.
Dated at Toronto, this 23rd day of December, 2011.
”signed by”__________
Brian Eyolfson
Vice-chair