Pascal Adorgloh v. Sentrex Communications Inc., 2011 HRTO 380

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pascal Adorgloh

Applicant

-and-

Sentrex Communications Inc.

Respondent

reconsideration DECISION

Adjudicator: Alison Renton

Date: February 22, 2011

Citation: 2011 HRTO 380

Indexed as: Adorgloh v. Sentrex Communications

1On December 22, 2010, the Tribunal issued a Decision (2010 HRTO 2524) finding that the respondent breached minutes of settlement entered into between the parties when settlement monies agreed to under the terms of the minutes were mailed to the applicant three days late. The applicant subsequently filed a Request for Reconsideration and this Reconsideration Decision addresses the applicant’s Request.

Background

2The Applicant filed an Application for Contravention of Settlement (Form 18) (“the Application”) on March 1, 2010 pursuant to section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging a breach of settlement. In the Application, the applicant alleged that the respondent had not complied with minutes of settlement dated January 19, 2010 which settled an earlier Tribunal Application and which required the respondent to pay him an agreed upon amount as settlement monies by February 15, 2010 (“the settlement monies”).

3The respondent filed a Response to an Application for Contravention of Settlement (Form 19) (“the Response”) stating that the settlement monies had been issued and mailed to the applicant. The respondent also sent the Tribunal a copy of the cancelled cheque dated February 9, 2010 in the amount of the settlement monies which appeared to have been cashed by the applicant on April 13, 2010.

4The Tribunal contacted the applicant, who advised that he wished to continue the Application on the basis that the settlement monies were allegedly paid late.

5A Case Assessment Direction was issued dated April 27, 2010 scheduling a conference call hearing to hear submissions on the merits of the Application. At para. 4, the Tribunal stated:

It appears to me, without deciding the issue, that any damages for any delay of less than two months, given the amount in question…., would be minimal, assuming there is justification for awarding them.

6A conference call hearing was held on November 2, 2010 and when the applicant failed to participate, the Tribunal issued a Decision dated November 2, 2010 (2010 HRTO 2185) (“the November Decision”) dismissing the Application.

7On November 16, 2010, the applicant filed a Request for Reconsideration (“the first Request”) noting that he had written to the Tribunal on October 15, 2010, requesting that the November 2, 2010 conference call be rescheduled. The Tribunal issued a Reconsideration Decision, 2010 HRTO 2289 (“the first Reconsideration Decision”), reconsidering its November Decision and ordering that a new conference call hearing to determine the merits of the Application be scheduled. The Tribunal noted at para. 3 of the first Reconsideration Decision:

It appears that as a result of an administrative error, the applicant’s request was not dealt with and was not placed in the Tribunal’s file. The Tribunal apologizes to the parties for the error and the inconvenience caused.

8The new conference call hearing was held on December 8, 2010 and both parties participated. The Tribunal issued a Decision dated December 22, 2010 (2010 HRTO 2524) (“the Decision”), in which the Tribunal found that there was a breach of settlement, but determined that it was not appropriate to award a remedy for the breach of the minutes of settlement. At para. 19, the Tribunal stated:

On the facts of this case, I have determined that it is not appropriate to award a remedy for contravention of the minutes of settlement. The only breach of settlement is that the settlement monies were mailed three days late. The minor del[a]y in this case amounted to a de minimus breach of the minutes of settlement. Therefore, on the facts of this case, I have determined that it is not appropriate to award a remedy for contravention of the minutes of settlement.

9By letter to the Tribunal’s Interim Chair, dated December 23, 2010 but received by the Tribunal on January 10, 2011, the applicant alleged that the Decision was “unfair, poor and bias [sic]”, asked for a reconsideration and a review of the Decision, and advised that he was still waiting for the “proposed interest on the cheque due to the breach of settlement”.

10In its letter to the applicant dated January 12, 2011, the Tribunal stated:

Further to your letter to the Human Rights Tribunal of Ontario (HRTO) received on January 10, 2011 concerning HRTO File Number 2010-05030-S, please be advised that Tribunal decisions are final and not subject to appeal. If you wish to challenge a Tribunal decision, you may apply to the Divisional Court for judicial review or may request reconsideration of the decision by the Tribunal in accordance with the Rules of Procedure, Rule 26. Your letter, dated December 23, 2010, does not constitute a request for reconsideration as required under the Rules.

Applications for judicial review are governed by the Rules of Civil Procedure; therefore if you intent to seek judicial review, you may wish to seek immediate legal advice.

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.

The Tribunal’s Practice Direction on Requests for Reconsideration is available on the Tribunal’s website at www.hrto.ca, as are the Rules of Procedure. A request for reconsideration must be commenced within (thirty) 30 days of the date of the decision by completing a Request for Reconsideration (Form 20), delivering it to all the other parties and filing it with the Tribunal along with Statements of Delivery (Form 23). [Emphasis in the original]

11The Tribunal sent its January 12, 2011 letter to the applicant again on January 19, 2011 when the applicant advised that he had not received it and again by email on January 27, 2011.

12On February 8, 2011, the Tribunal received the Request for Reconsideration from the applicant dated February 3, 2011 (“the Request”). Attached to the Request was a letter dated December 23, 2010, which is not addressed to anyone but appears to have been sent to the respondent. Also attached was a copy of the applicant’s December 23, 2010 letter to the Tribunal, which the applicant had amended by removing a sentence about the financial remedy he was seeking.

13On the Request form itself, the applicant identified that he was filing the Request on the basis that the decision is in conflict with established case law or Tribunal procedure and the Request involves a matter of general or public importance and that other factors exist that outweigh the public interest in the finality of Tribunal decisions.

14The applicant submits, as stated in his December 23, 2010 letter to the Tribunal, that “By law there is no ‘big or small’ breach of settlement. A breach of settlement is a breach of settlement. And there is no need to go around of [sic] or deny it”. In relation to the Tribunal’s apology to him about proceeding with the November 2, 2010 hearing which dismissed his Application, the applicant states, “I reject that apology and will hold the HRTO accountable for the mistreatment I am going through. Racial profiling and discrimination.” He alleges:

Both of you, HRTO and Sentrex intentionally mistreated me because of my race and then try to make me believe an administrative error occurred along the line. For your information, I do not buy it at all.

Analysis

15Section 45.7(1) of the Code provides that any party to a proceeding before the Tribunal may request that the Tribunal reconsider a final decision in accordance with the Tribunal Rules.

16The 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, in part:

26.1 Any party may request reconsideration of a final decision of the Tribunal within 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.

17The 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.

18While the applicant submits that the Request was initially sent on December 23, 2010 and he was told to resend it using a Form 23, I find that he filed his Request on February 8, 2011, the date it was received by the Tribunal, which is beyond the 30-day time limit for seeking reconsideration under the Tribunal’s Rules. The Code and the Rules set out the process and the timeframe for seeking reconsideration of a decision. In addition, on three separate occasions the Tribunal sent the applicant correspondence explaining his options about pursuing a judicial review or reconsideration each of which referenced the 30-day time limit. Accordingly, the Request is untimely and is denied.

19Notwithstanding the untimely nature of his Request, the applicant has not offered any basis for the Tribunal to reconsider its Decision. The applicant filed his Request on the basis that the Decision is in conflict with established case law or Tribunal procedure and that the proposed reconsideration involves a matter of general or public importance. His primary submission is that a breach of settlement, regardless of the size of the breach, is a breach of settlement, and beyond that, he does not provide any basis for his Request. Further, he has not referred to any caselaw in support of his Request and has not addressed or distinguished the Supreme Court of Canada decision that was referenced in the Decision, Ontario v. Canadian Pacific, [1952] 2 S.C.R. 1031, and specifically the legal principle set out therein that “the law does not concern itself with trifles” (see para. 18 of the Decision).

20The applicant has not identified other factors that outweigh the public interest in the finality of the Tribunal’s decisions as required by Rules 25(d) and, based upon the material filed, there is no basis for me to reconsider the Decision.

21With respect to the applicant’s rejection of the apology that the Tribunal extended to him in the first Reconsideration Decision, and his allegations that he was mistreated, racially profiled and discriminated against, I find that these issues arise out of the first conference call hearing and the first Reconsideration Decision. The first Reconsideration Decision was issued approximately 2.5 months before the Request was filed, and these allegations are beyond the required 30-day time limit and are, accordingly, untimely.

22Regardless, as noted above, the Tribunal issued the first Reconsideration Decision and ordered that a new conference call hearing to determine the merits of the Application be scheduled. Ultimately, the Tribunal found that a breach of settlement occurred, but determined that it was not appropriate to award a remedy for the breach.

23The Request for Reconsideration is denied.