Christopher Broughton v. Tutti Frutti, 2011 HRTO 2313

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christopher Broughton

Applicant

-and-

Tutti Frutti and Tom Osmond

Respondents

RECONSIDERATION DECISION

Adjudicator: Ian R. Mackenzie

Date: December 28, 2011

Citation: 2011 HRTO 2313

Indexed as: Broughton v. Tutti Frutti

WRITTEN SUBMISSIONS BY

Christopher Broughton, Applicant ) Self- represented

Tutti Frutti and Tom Osmond, Respondents ) Denise Boyer, Representative )

1On December 7, 2011, the Tribunal issued its Decision in this Application, 2011 HRTO 2210, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

background

2The Tribunal’s Decision dismissed the Application on the basis that it was deemed to be abandoned. The Tribunal found as follows (at paras. 2-3):

The applicant advised the Tribunal on December 2, 2011, that he was not available to attend the hearing scheduled for the following week. He requested an adjournment. I denied the request for an adjournment (2011 HRTO 2195). I also ordered that the applicant advise the Tribunal by 12:30 p.m. on December 7, 2011, if he intended to attend the hearing. The Interim Decision stated that if he did not inform the Tribunal of his intention to attend the hearing by that time, the Application would be dismissed as abandoned.

Instead of complying with the Tribunal’s direction to confirm his intentions with respect to attendance at the scheduled hearing, the applicant left a voicemail at the Tribunal and, once again, stated that he needed an adjournment. A tribunal staff member attempted to contact the applicant by telephone in response to his voicemail message, but was unable to reach him in person. By reiterating a further request for an adjournment, the applicant has once again failed to comply with the express direction or order of the Tribunal to confirm whether he will attend the scheduled hearing. In addition, the applicant has not met any of the disclosure requirements for the proceeding as set out in the Rules of the Tribunal. He was reminded of those obligations and more importantly directed or ordered to comply with those obligations in two Case Assessment Directions. By these actions, the applicant has shown that he is not willing to participate in the proceedings. Should this matter proceed as scheduled, it appears that the Applicant will not attend and the respondents will likely be put to considerable unrecoverable costs, which I find would be unfair in light of all I have set out above. Accordingly, I find that the applicant is deemed to have abandoned his Application.

THE REQUEST FOR RECONSIDERATION

3To support his Request for Reconsideration, the applicant states that he did not receive notice of the proceeding or hearing. He made the following submissions:

• Receiving and sending of emails has been a constant issue.

• The CAD providing instructions on what to do was received only 8 days before the hearing date.

• The applicant cannot afford legal representation and he is still learning about the process.

• The applicant has a family to support and cannot get time off work to attend a hearing very easily.

• The respondents have repeatedly asked and received adjournments and the applicant was only informed after the granting of the adjournment and was not given an opportunity to object to the requests for adjournment.

• The granting of adjournments for the respondents has required the applicant to change his schedule and caused emotional distress.

• The applicant believes that he has a valid case against the respondents and he has invested time, effort and emotion into the Application.

4In its response the respondents object to the Request. The respondents submitted that the Tribunal had provided adequate extensions of time to comply with the Rules. They also submitted that they had not requested adjournments.

ANALYSIS AND DECISION

5Under 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.

6The 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 26.5 which states:

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.

7The applicant has relied on paragraph b of Rule 26.5: not receiving notice of the proceeding.

8The Tribunal’s Practice Direction on Reconsideration states:

… 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.

9I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

10There is nothing before me suggesting that the applicant did not receive notice of the proceeding or a hearing. He clearly did receive notice of the proceeding and refers to the CAD that he received prior to the scheduled hearing date. His response to the CAD outlining the consequences of not attending the hearing scheduled for December 8, 2011 was to again request an adjournment.

11Reconsideration is not an opportunity to re-argue a case. The applicant is re-arguing his request for an adjournment. Once the Tribunal has made a determination on an adjournment request, the parties are entitled to treat the matter as closed, subject to limited exceptions.

12Although he did not rely on the other criteria for reconsideration in his Request, I will consider those criteria.

13There are no new facts presented that would justify reconsidering the decision to deny the adjournment request and to dismiss the Application. The applicant had an opportunity to raise the facts contained in his Request prior to the dismissal of the Application and he did not.

14The Decision is not in conflict with the established jurisprudence of the Tribunal and the applicant has not established that the proposed reconsideration involves a matter of general or public importance.

15The applicant has not raised any issues or concerns that outweigh the public interest in the finality of Tribunal decisions.

16In conclusion, 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.