Keyvan Nourhaghighi v. Harris Management Corporation, 2012 HRTO 1050

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Keyvan Nourhaghighi

Applicant

-and-

Harris Management Corporation

Respondent

RECONSIDERATION DECISION

Adjudicator: Brian Eyolfson

Date: May 25, 2012

Citation: 2012 HRTO 1050

Indexed as: Nourhaghighi v. Harris Management Corporation

WRITTEN SUBMISSIONS

Keyvan Nourhaghighi, Applicant ) Self-represented

Harris Management Corporation, Respondent ) Bora Nam, Counsel )

1On November 18, 2011, the Tribunal issued its Decision in this Application, 2011 HRTO 2090, dismissing the Application on the basis that the applicant was deemed to have abandoned the Application. The applicant has asked the Tribunal to reconsider its Decision.

background

2In a Case Assessment Direction (“CAD”), dated June 2, 2011, the Tribunal directed that this matter be scheduled for a half-day summary hearing by conference call to determine whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed. The CAD indicated that a Notice of Summary Hearing would follow.

3On June 17, 2011, the applicant filed correspondence with the Tribunal objecting to a conference call, submitting that a conference call is not a “hearing” under the Tribunal’s Rules of Procedure. He also submitted, “NO Telephone number is disclosed to my Application.” The applicant also requested a Farsi interpreter for the hearing.

4In a further CAD, dated June 24, 2011, the Tribunal indicated that it remained of the view that a summary hearing should be held by teleconference in this matter, and that the issue of an interpreter would be addressed by the Tribunal’s Registrar’s Office.

5On September 27, 2011, the Tribunal issued a Notice of Summary Hearing to the parties, confirming that a hearing would take place on November 16, 2011, commencing at 1:30 p.m., by conference call. The Notice stated, “You must connect to the call by dialing [one of two telephone numbers] and entering Conference ID…” The Notice was delivered to the applicant at the last address provided by the applicant to the Tribunal and was not returned as undeliverable.

6While the respondent and an interpreter were in attendance at the commencement of the scheduled conference call hearing on November 16, 2011, the applicant was not. In accordance with its usual practice, the Tribunal waited until 2:00 p.m. before proceeding. At 2:00 p.m. the applicant was not in attendance, nor had the applicant otherwise communicated with the Tribunal to explain the failure to attend. In the circumstances, the Tribunal was satisfied that the applicant had notice of the hearing, and the Application was dismissed. The Tribunal’s decision dismissing the Application as abandoned was confirmed in writing on November 18, 2011.

THE REQUEST FOR RECONSIDERATION

7On December 16, 2011, the applicant delivered to the respondent and filed with the Tribunal a Request for Reconsideration (“Request”), wherein the applicant submits that he never intended to abandon his Application. The applicant submits, among other things, that he did not receive a copy of the Notice of Summary Hearing. The applicant also submits that there is no evidence that there was a telephone number on his Application, and states, “I have telephone and I do not know to use it.” The applicant also reiterates his previous objection to the hearing being held by conference call. Later in his submissions, the applicant states that he does not have a telephone.

8The respondent submits that the applicant’s Request should be denied. The respondent submits that, on November 9, 2011, it successfully served by “Xpresspost” its additional documents for the summary hearing at the last address provided by the applicant. The respondent submits that there is no evidence that the applicant did not receive the Tribunal’s notice of the summary hearing as claimed, as the notice was sent to the last address provided by the applicant and was not returned as undeliverable, and the respondent’s additional materials were successfully served on the applicant prior to the hearing.

9The respondent also submits that, in determining a reconsideration request, it is appropriate for the Tribunal “to consider all circumstances and history related to the applicant and his conduct”: See McIntyre v. Loblaw Companies, 2011 HRTO 941. The respondent submits, as further elaborated in its Response to the Application, that the applicant was declared a vexatious litigant by Order of the Ontario Court (General Division), dated February 6, 1997. The respondent also refers in its Response to a Decision of the Tribunal in which a different Application of the applicant’s was dismissed as an abuse of process where the applicant failed to comply with the Tribunal’s directions: See Nourhaghighi v. Toronto Catholic District School Board, 2009 HRTO 2085.

DECISION

10Under 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.

11The 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 are Rules 26.1 and 26.5 which state:

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.

12The Tribunal’s Practice Direction on Reconsideration begins with the following statement:

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.

13As 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.

14In his Request, the applicant relies on subsection (b) of Rule 26.5 of the Tribunal’s Rules claiming that he did not receive notice of the hearing through no fault of his own. However, for the reasons that follow, I am not satisfied that the applicant did not receive notice of the hearing through no fault of his own.

15The focus of the applicant’s submissions in his Request appears to be his continued disagreement with the previous CADs directing that a summary hearing be held by teleconference. I also note that the applicant clearly makes contradictory statements about his telephone. At one point the applicant submits that he does not have a telephone, and at another point he submits that he has a telephone but does not know how to use it.

16The applicant’s mailing address does not appear to have changed since he filed his Application and provided his contact information. There is no indication that any other correspondence from the Tribunal in this matter did not reach the applicant, including the respondent’s Response, a Notice of Mediation, the Tribunal’s two CADs, and the Tribunal’s Decision dated November 18, 2011. Further, the Tribunal’s Notice of Summary Hearing sent to the applicant was not returned as undeliverable, and the respondent successfully served the applicant with additional documents for the summary hearing on November 10, 2011, at the address he provided.

17Considering all of the circumstances in this particular case, I am not satisfied that the applicant did not receive notice of the hearing through no fault of his own, or has established the existence of any of the other criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision.

18The Reconsideration Request is denied.