HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hélène Théberge
Applicant
-and-
Eagleson Co-operative Homes Inc. and Monique Poirier
Respondents
RECONSIDERATION DECISION
Adjudicator: Maureen Doyle
Indexed as: Théberge v. Egleson Cooperative Homes
WRITTEN SUBMISSIONS
Hélène Théberge, Applicant ) François Kabemba,
) Counsel
1On February 25, 2011, the Tribunal issued its Decision 2011 HRTO 394, dismissing the Application.
2The applicant filed a Request for Reconsideration dated March 25, 2011. The Request was filed March 29, 2011.
background
3The Decision records in some detail the procedural history of this Application and the various accommodations afforded to the applicant. The Application was heard on May 20, October 12, October 22 and December 14, 2010. On December 14 the applicant was to cross-examine the respondents’ two witnesses following which the parties would present their final argument. The applicant failed to appear on December 14, 2010 despite receiving confirmation from the Tribunal that the hearing was proceeding on that day. The respondents provided their final argument, following which the hearing was concluded. On December 30, 2010 the applicant wrote to the Tribunal to request an adjournment of the hearing.
DECISION
4Under section 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“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 in relation to Applications made pursuant to sections 53(3) and 53(5) 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 25 which states:
25.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision
25.5. 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.
6The 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.
7As 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.
8The Request for reconsideration was filed outside the 30 day period provided for in Rule 25.1. In the circumstances I am prepared to waive the time for filing and will consider the Request.
9I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.
10The Request for Reconsideration relies on Rules 25(b) and (c). The applicant states she was entitled to but, through no fault of her own, did not receive notice of the hearing, and that other factors exist which outweigh the public interest in the finality of Tribunal decisions.
11The applicant submits that she had obtained an adjournment of the proceeding and that she contacted Legal Aid in order to obtain legal services and she also contacted counsel, advising him that she had obtained an adjournment. The applicant submits that she did not know her hearing was scheduled for December 14, 2011 and that even if she did know, given her health problems and her age, she had “completely lost sight of” [TRANSLATION] the fact of her hearing date. She submits that the fact she wrote to the Tribunal requesting an adjournment on December 30, 2010 is proof that she was unaware of the December 14, 2010 hearing date.
12The applicant also submits that the fact she now has a lawyer is a factor which must be considered for the proper administration of justice. She submits that it is in the public interest that her case be “re-opened” to provide her with the opportunity for cross-examination of the respondents’ witnesses and for making final argument. She argues that there would be no prejudice to the respondents in doing so.
13The Decision recounted the fact that the parties had been canvassed for mutually available hearing dates at the hearing on October 22, 2010. One of the available dates identified by the parties was December 14, 2010. The Decision noted that on November 2, 2010, the Tribunal issued a Notice of Hearing confirming December 14, 2010 as the next hearing date and setting out the fact that adjournments would be granted in limited circumstances, such as previously scheduled medical or court appointments, and that adjournment requests were to be made within 10 days of the Notice.
14On December 2, 2010, well past the time for requesting an adjournment of a scheduled hearing date, the applicant wrote to advise she was seeking counsel and would have a Legal Aid certificate at the beginning of January, 2011. She did not request an adjournment.
15The decision records that on December 13, 2010, the Tribunal emailed the parties confirming that the hearing would proceed on December 14, 2010. There is no suggestion that the applicant had not received the communication.
16The applicant was well aware from the October 22, 2010 discussion that the respondents would object to any request for adjournment based on the availability of counsel, noting that the applicant had ample opportunity to obtain counsel previously.
17The Decision also noted that the applicant is not an unsophisticated litigant and that she had successfully sought an adjournment of a previous hearing date, when she was advised in the Interim Decision that adjournments are not lightly granted and that medical documentation would be needed if she sought any further adjournments on the grounds of her medical condition.
18I find that the applicant had ample notice of the December 14, 2010 hearing date. The date was set after canvassing the parties for available dates, a Notice of Hearing was sent out and not returned as undeliverable, and finally the Tribunal confirmed the December 14, 2010 hearing date by email sent December 13 and this email was not returned as undeliverable. In these circumstances, without some explanation from the applicant, I do not find the December 30, 2010 correspondence supports her claim she was unaware of the December 14, 2010 hearing date. Further, the fact of her December 30, 2010 request for an adjournment clearly indicates that she did not believe she had already secured an adjournment from the Tribunal for the final day of hearing.
19With regard to the applicant’s argument that she lost sight of the fact she had a hearing date, given her health and age, she has offered no evidence to support this contention. Moreover given that the Tribunal communicated the hearing date twice to her, including the day before the hearing, I am not persuaded that the applicant was unaware of the hearing date for any reason.
20I do not find that the applicant has established that she was entitled to but did not receive notice of the proceeding or a hearing.
21The applicant has also submitted that the fact that she now has counsel is a factor which must be considered in support to the Request. In Vallentyne v. Royal Canadian Legion 2009 HRTO 534, the Tribunal stated:
The decision of a party to retain counsel after a hearing is scheduled is not the type of circumstance that would justify a request for an adjournment. Absent exceptional circumstances, a party must find counsel who is available on the date already scheduled. Moreover, in this case the applicant will be prejudiced as she has already made arrangements for her attendance and that of her witnesses at the hearing. Accordingly, the request for an adjournment is denied.
22The unavailability of counsel, absent exceptional circumstances, therefore, would not likely have resulted in an adjournment of the December 14, 2010 hearing date. Allowing the matter to be re-opened and another hearing date to be set at this point, would, in essence, be allowing the applicant to achieve indirectly the adjournment which would not likely have been available to her had she followed the proper procedures. I do not find that the fact of legal representation at this stage outweighs the public interest in the finality of Tribunal decisions.
23In sum, I find that the applicant has not established the existence of any of the criteria in Rule 25 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.
Dated at Toronto, this 12th day of May, 2011.
”signed by”________
Maureen Doyle
Vice-chair