HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dianne Walker
Applicant
-and-
Dr. Michael Gossack Professional Corporation, Michael Gossack and Lynne O’Connor
Respondents
RECONSIDERATION DECISION
Adjudicator: Michelle Flaherty
Indexed as: Walker v. Dr. Michael Gossack Professional Corporation
WRITTEN SUBMISSIONS
Dianne Walker, Applicant self-represented
Dr. Michael Gossack Professional Corporation, Michael Gossack and Lynne O’Connor, Respondents David M. McNevin, Counsel
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) in which she alleges discrimination in employment on the basis of disability.
2The respondents filed a Response in which they requested the early dismissal of the Application because they say the applicant has signed a full and final release with respect to the same subject-matter.
3Following an Interim Decision, 2010 HRTO 1444, the Tribunal issued a Notice of Hearing (“Notice”), scheduling a hearing by telephone conference call to address the respondents’ Request for the early dismissal of the Application. The Notice set out the date and time of the hearing and provided parties with a number to call in order to participate in the telephone conference.
4The hearing took place on January 31, 2011, beginning at 9:30 am. The respondents and their counsel attended the hearing. Although she appeared to have received the Notice, the applicant did not attend. The Tribunal issued a Decision dismissing the Application as abandoned: 2011 HRTO 218.
5The applicant has filed a Request for Reconsideration (“Request”). In essence, she argues that she did not receive notice of the hearing. The respondents oppose the Request and, at the Tribunal’s Request, have filed written submissions in response.
ANALYSIS
6Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request that it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, 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.
7Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. In this regard, it is helpful to consider the Tribunal’s Practice Direction on Reconsideration, which states in part:
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.
8The applicant argues that the Decision dismissing her Application ought to be reconsidered because she did not receive notice of the hearing and because there are factors in this case that outweigh the public interest in the finality of the Tribunal’s decisions.
9In the Request, the applicant writes that she does not recall receiving the Notice of Hearing. In reply submissions, the applicant states that she did not actually receive the Notice and only became aware of the hearing when, on January 22, she received materials from the respondents referencing the date and time of the upcoming hearing. She states that she searched her home for the Notice, but has not located it.
10The applicant did not contact the Tribunal to confirm the date and time of the hearing or to inquire about how to participate. She states that she has never participated in proceedings of this nature and did not appreciate that she was required to phone in to the hearing. She says that she waited by her telephone on the date of the hearing and expected the Tribunal to contact her.
11At 10:45 am on January 21, the applicant telephoned the Tribunal and learned that the hearing, which had commenced at 9:30 am that morning, had already concluded.
12The respondents oppose the Request. They argue that the Rules contemplate a reconsideration only where a party “through no fault of its own” did not receive notice of the hearing.
13In this case, the respondents argue that the applicant initially states she “does not recall” receiving the Notice, not that she did not receive it. The respondents’ counsel points out that the applicant’s reaction to learning of the hearing was to search her home for the Notice. This, the respondents argue, suggests that she did receive the Notice but misplaced it.
14The respondents state that the applicant has demonstrated some sophistication in these proceedings; she has completed documents and has obtained legal and other assistance where appropriate. The respondents argue that, in the nine days between when she received materials from them and the date of the hearing, the applicant ought to have taken reasonable steps to determine how she could participate in the hearing.
15The applicant appears to have had a genuine belief that the Tribunal would contact her and she was available and waiting by the phone for that purpose. She contacted the Tribunal one hour and fifteen minutes after the hearing was scheduled to begin and, when she learned the Application had been dismissed, she promptly filed the Request.
16Although I have concerns about the applicant’s failure to take appropriate steps to participate in the hearing, I cannot infer from the applicant’s ability to file an Application and other documents that she understood that the hearing might take place in her absence or that she understood that she was required to call the telephone number included in the Notice in order to participate in the hearing. While she may have consulted counsel in the past, there is no basis for me to conclude that she was represented or assisted by counsel in regards to the hearing.
17The Request is granted. Although the applicant did receive notice of the hearing on at least January 22, in the circumstances of this case, there are factors that outweigh the public interest in the finality of the Tribunal’s decisions.
18The Registrar will reschedule a half day telephone conference hearing in order to deal with the respondents’ request for the early dismissal of the Application. The directions provided in the earlier Interim Decision, 2010 HRTO 1444, apply to the hearing.
19I am not seized of this matter.
Dated at Toronto, this 25th day of February, 2011.
“Signed by “
Michelle Flaherty Vice-chair