McIntrye v. Loblaw Companies, 2011 HRTO 941

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gilbert McIntrye

Applicant

-and-

Loblaw Companies Limited, Ontario Lottery and Gaming Corporation and McLean Wood

Respondents

RECONSIDERATION DECISION

Adjudicator: Brian Cook

Date: May 17, 2011

Citation: 2011 HRTO 941

Indexed as: McIntrye v. Loblaw Companies

WRITTEN SUBMISSIONS BY

Gilbert McIntyre, Applicant ) on his own behalf

Loblaw Companies Limited, ) McLean Wood,

Respondent ) Counsel )

Ontario Lottery and Gaming Commission, ) David Ross,

Respondent ) Counsel

1On February 17, 2011, the Tribunal issued its Decision in this Application, 2011 HRTO 355, dismissing the Application because the applicant had not provided an adequate explanation for his failure to attend the scheduled hearing. The applicant has asked the Tribunal to reconsider its Decision.

background

2The applicant filed an Application with the Tribunal on April 29, 2010. The Application alleged discrimination in goods and services on the grounds of race. According to the Application, he was barred from shopping at a store operated by the corporate respondent Loblaw. He alleges that the reason for this is that he had been living with Ms. M., a cashier employed at the store. He is no longer living with her and there have been various disputes, legal and otherwise, between her and the applicant. The Application alleged that Ms. M and Ms. B, who is another cashier employed at the store, discriminated against him by trying to have him charged with trespassing. According to the Application, the corporate respondent never told him that he could not shop at the store but he did receive a letter from the personal respondent McLean Wood, who is a corporate legal counsel for Loblaw, stating that he could be asked not to shop at the store in the future if information were received indicating that he was harassing store employees at the store.

3There has been some confusion about the number of respondents. The Application variously named the corporate respondent, Loblaw, McLean Wood, Ms. M, Ms. B, and an assistant manager who was not identified. On July 8, 2010, the applicant wrote to the Tribunal asking the Tribunal to remove the assistant manager and Ms. M, as respondents. On August 5, 2010, the applicant sent another letter to the Tribunal confirming that he wished to remove both Ms. M and Ms. B as respondents. It is not clear if the applicant intended to name McLean Wood as a personal respondent. This is a matter that would have been clarified if the Application had proceeded. The applicant subsequently advised the Tribunal that he wished to add the Ontario and Gaming Lottery Corporation (“OLG”) as a respondent. The allegations against OLG are not clear. The letter seeking to add OLG mentions only various complaints against employees of Loblaw.

4On September 16, 2010, the Tribunal delivered a Case Assessment Direction (CAD) to the applicant and the two corporate respondents. Pursuant to the Tribunal’s Rules 19A.1 and 19A.2, the CAD directed that a half-day hearing by teleconference by held to determine if the Application should be dismissed because there is no reasonable prospect that the Application will succeed. The respondents were not required to file a Response to the Application.

5On October 14, 2010, the Tribunal issued a Notice of Summary Hearing setting January 7, 2011 as the date. The applicant subsequently called the Tribunal seeking permission to appear at the hearing in person instead of on the telephone. The Tribunal Registrar confirmed with the parties that they could participate in the summary hearing either in person or by telephone.

6On December 9, 2010, the applicant wrote to the Tribunal stating that he wished to add Ms. B as a personal respondent. In a letter dated January 11, 2011, the Tribunal advised the applicant that he had not provided confirmation that his letter seeking the addition of a personal respondent had been sent to the respondents and that the Tribunal cannot consider any materials that have not been delivered to the other parties.

7On December 20, 2010, the applicant wrote to the Tribunal seeking an adjournment of the hearing. He said that the reason for the request is that he has cancer, a cardiac condition, an eye condition, and had the flu, which worsened his chronic medical conditions.

8On December 30, 2010, the applicant forwarded various documents, including medical reports that confirm that he suffers from several chronic medical conditions.

9The Tribunal denied the adjournment request. The applicant had not explained why the fact that he had the flu on December 20, 2010 would prevent him from participating in a hearing, either in person or by telephone on January 7, 2011. The Tribunal Registrar left the applicant a voice mail message on January 6, 2011 confirming that the hearing was proceeding on January 7, 2011 and that he was expected to participate either in person or by telephone. Later on January 6, 2011, the applicant left a voice message at the Tribunal indicating that he could not attend the hearing because he was sick and also because he felt he was prevented from appearing because a criminal harassment charge had been filed against him and he was concerned that he would be arrested if he were to participate.

10On January 7, 2011, the respondents appeared and the applicant did not appear. I issued an Interim Decision, 2011 HRTO 65. It stated in part:

By January 21, 2011, the applicant shall provide the Tribunal, and copy the respondents, with a detailed written explanation for his failure to appear at the summary hearing. If the applicant has a medical condition that prevented him from participating in the Summary Hearing, he must provide medical confirmation regarding this condition and why it would prevent him from participating either in person or by telephone. If the applicant believes that he is legally prevented from participating in a proceeding at the Tribunal, he must provide a detailed explanation for the basis for this belief with supporting documentation. He must also explain how he wishes the Tribunal to deal with his Application if in fact he is legally prevented from participating in a proceeding at the Tribunal.

If an adequate explanation is not received by January 21, 2011, the Application may be dismissed.

11The Interim Decision noted that it appeared that the applicant was involved in legal disputes with one or more of the people originally identified as personal respondents but that those individuals had been removed as respondents.

12On January 12, 2011 the Tribunal received a letter from the applicant dated January 6, 2011. The letter indicated that he had been advised by a police officer and a lawyer not to attend the hearing because of an ongoing legal dispute with Ms. B. No documentation was provided to support this information and no explanation was provided for why any legal dispute with Ms. B would be a reason not to participate in the summary hearing, since Ms. B is not a party. The letter also included a “Work Absence Certificate” dated January 6, 2011. It is a form letter from a family doctor and states:

This letter is to certify that Gilbert McIntyre was assessed in this office and was/is unable to work due to illness from January 3, 2011 to January 7^th, 2011.

Additional Comments

Acute viral illness.

13On February 17, 2011, the Tribunal issued Decision 2011 HRTO 355, dismissing the Application. The Decision stated in part:

The applicant has not provided a detailed explanation or any documentation to explain why he would face criminal prosecution if he were to participate in the Tribunal process. Nor has he explained how he wishes the Tribunal to deal with his Application if in fact he is legally prevented from participating in a proceeding at the Tribunal.

The applicant’s letter also states that he cannot proceed because of “medical illness”. He has not provided medical confirmation regarding this condition and why it would prevent him from participating either in person or by telephone.

The applicant has not complied with the Tribunal’s direction as set out in Interim Decision 2011 HRTO 65. He has not provided an adequate explanation for his failure to attend the scheduled hearing. The Application is dismissed.

14On March 14, 2011, the applicant filed a Request for Reconsideration and a Request for Summary Hearing. He asked that the decision to dismiss the Application be reconsidered and that the summary hearing be re-scheduled. He enclosed a letter from his family doctor dated March 9, 2011 which reads as follows:

This letter is to certify that Gilbert McIntyre is a regular patient of our clinic. He was seen by me today.

This letter is to clarify that Mr. McIntyre was unable to participate in a meeting that took place on January 7, 2011 due to an acute medical condition in the setting of multiple chronic conditions that render his general [recovery] from illness very difficult.

15In his Request for Reconsideration, the applicant confirms that he suffers from a number of chronic conditions and states that due to his age and his chronic medical conditions, getting the flu is “potentially deadly”. He states that in addition he was taking an antihistamine and decongestant medication that rendered him “medically and mentally incompetent to participate in any hearing in person or by telephone.” The applicant argues that the decision to deny his adjournment request resulted in discrimination by the Tribunal on the grounds of disability. The letter reiterates his view that he could have been arrested if he had proceeded with the summary hearing because of the ongoing legal issues related to Ms. B and Ms. M. He did not provide anything to confirm this and did not explain why this would be a problem given that neither Ms. B nor Ms. M are respondents.

16On April 21, 2011, the Tribunal invited submissions from the respondents with respect to the Request for Reconsideration. The respondents filed submissions indicating that they oppose the Request for Reconsideration.

The Tribunal’s Reconsideration Powers

17Under 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.

18The 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 Reconsideration Decision is Rule 26 which states:

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.

19The 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.

Conclusions

20The applicant submits that based on the March 9, 2011 letter from his doctor, and the further information that he has provided concerning his medical condition, it should now be clear that the adjournment request that he submitted in December 2010 in respect of the January 7, 2011 hearing should have been granted.

21In my view, the issue at this point is not limited to the question of whether the December 2010 adjournment request should have been granted. The Application was not dismissed because the applicant failed to participate either by telephone or in person in the scheduled hearing. After the applicant’s failure to appear, the Tribunal issued the Interim Decision, which advised the applicant that he was required to provide an adequate explanation for his failure to attend. The Interim Decision informed the applicant that the Application would be dismissed if he failed to provide an adequate explanation.

22It is clear that the applicant has a number of serious and chronic medical conditions. There is no suggestion that the applicant was unable to attend the hearing because of any change in these chronic conditions. Instead, the information provided by the applicant indicates that the problem was that he had the flu. The medical information that the applicant provided in response to the Interim Decision indicated that the applicant was “unable to work” from January 3, 2011 to January 7^th, 2011 due to acute viral infection. It is not clear how this acute viral infection relates to the flu condition that the applicant mentioned when he made the adjournment request in December 2010. The medical note also does not address why the applicant was unable to participate in a hearing even by telephone on January 7, 2011.

23The more detailed letter from the applicant’s doctor submitted in support of the Request for Reconsideration states that the applicant was “unable to participate in a meeting that took place on January 7, 2011” but does not explain why the applicant was unable to participate by telephone.

24I note that this Application is not the first legal proceeding that the applicant has been involved in where he has asked for an adjournment because of medical problems. Documents filed by the respondents include a decision of Justice Himel, a judge of the Ontario Superior Court of Justice, released March 12, 2008 (McIntyre v. Connolly [2008] O.J. No. 1097). The decision concerned a legal action brought by the applicant against a number of defendants. One of the issues dealt with in the reasons was an adjournment request from the applicant:

At the outset of the hearing scheduled before me, Mr. McIntyre requested an adjournment. He had requested an adjournment on the return of the same motions in April and in June of 2007. In June, Justice Conway had granted his request on strict terms including that he file materials in accordance with a timetable and that the return date which was set for six months later be peremptory upon him. For a number of reasons outlined orally, I exercised my discretion and refused the adjournment request.

The argument of the motions proceeded and counsel for the moving parties completed their submissions in just over one hour. Mr. McIntyre, who represented himself, made submissions for approximately one hour. The court recessed for the lunch break. However, after the recess, Mr. McIntyre informed court staff that he was not feeling well. Staff advised the court and counsel and the case was adjourned for two weeks to allow Mr. McIntyre to recover. He was to conclude his submissions on January 18, 2008. Mr. McIntyre was informed of the date before leaving the court house. He was also reminded at the date by counsel in writing and by telephone. On the morning of January 18, 2008, Mr. McIntyre attended at the court house and dropped off a letter indicating he had been to hospital on the earlier court date and attached notes and letters from physicians from 2007 stating that he has certain medical conditions requiring treatment. Also attached was a note of January 17, 2008 from a family physician indicating that Mr. Mclntyre was under doctor's care and was advised “to rest for the next two weeks or so." The medical note gave no diagnosis or prognosis and did not address the question of whether Mr. McIntyre could attend court. Mr. McIntyre requested that the case not proceed but did not attend at court to make that representation. Counsel for the moving parties urged that the motions proceed as there had been a pattern that on the date of the motion, Mr. McIntyre would make adjournment requests. Following submissions by counsel, I exercised my discretion and refused to grant the adjournment for reasons outlined orally. The decision that follows is based upon the oral submissions that were made on the two dates and the extensive written materials filed, including affidavits of the moving parties served and filed in April 2007. There was no affidavit filed by the plaintiff in response to the motions.

25Justice Himel went on to dismiss or strike out the actions and declared the applicant a vexatious litigant under section 140 of the Courts of Justice Act.

26The decision of the Court is not directly relevant to the present Application. However, in my view, it shows that the applicant was aware, or ought to have been aware, that a request to adjourn a legal proceeding will not be treated lightly even when the request is supported by some medical information and that it is particularly inadvisable to simply refuse to participate in a proceeding when an adjournment request has been denied.

27In this case, the Tribunal’s Interim Decision directed the applicant to provide an adequate explanation for his failure to participate even by telephone in the scheduled hearing. He did not do so. In respect of his medical difficulties, he provided only a form letter that indicated he was unable to work. As noted, even the somewhat more detailed letter from his doctor submitted in support of the Request for Reconsideration indicates that he was unable to participate in a meeting but does not indicate that he was unable to participate in a telephone conference call. The applicant’s suggestion that he was “medically and mentally incompetent to participate in any hearing in person or by telephone” because he was taking an antihistamine and decongestant is somewhat dubious and is not supported by the medical letter he submitted.

28The Request for Reconsideration also addresses the applicant’s continuing concern that he was prevented from participating in the hearing because he believed that he would be arrested if he did. He has not explained why he continued to believe this was a problem even after receiving the Interim Decision, which noted that Ms. B and Ms. M were not parties. Even if it were a legitimate concern, the Interim Decision directed the applicant to address the concern and explain how he proposed to proceed. He did not do this. I note as well that this alleged obstacle was not identified by the applicant at the time he submitted his request for adjournment in December 2010.

29The Application was dismissed because the applicant failed to provide an adequate explanation for his failure to attend the scheduled hearing. In my view, it is appropriate to consider all of the circumstances and history related to the applicant and his conduct. Having considered all of the circumstances and history, I am not satisfied that the applicant has shown that there is a good reason to reconsider the Tribunal’s decisions, nor am I satisfied that the applicant has established that he has satisfied any of the criteria set out in Rule 26.5 of the Tribunal’s Rules for when a Request for Reconsideration may be granted.

30The Request for Reconsideration is denied.