Myrlande Mathurin v. University of Toronto, 2012 HRTO 1102

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Myrlande Mathurin

Applicant

-and-

University of Toronto, University of Toronto Freedom of Information Privacy Office, Rafael Ezkenazi and Howard Jones

Respondents

Reconsideration DECISION

Adjudicator: Jennifer Scott

Date: June 4, 2012

Citation: 2012 HRTO 1102

Indexed as: Mathurin v. University of Toronto

WRITTEN SUBMISSIONS

Myrlande Mathurin, Applicant ) On her own behalf

INTRODUCTION

1On November 16, 2011, the Tribunal issued a Case Assessment Direction advising the parties that the Application would proceed to a summary hearing to determine whether it should be dismissed, in whole or in part, on the basis that there was no reasonable prospect the Application would succeed. The Case Assessment Direction was sent to the applicant by regular mail at the address noted on the Tribunal file.

2On November 25, 2011, the applicant sent correspondence to the Tribunal wherein she confirmed receipt of the Case Assessment Direction.

3The Tribunal sent the applicant and the respondents a Notice of Summary Hearing dated December 15, 2011 advising them that the summary hearing would take place by teleconference on March 15, 2012. The Notice of Summary Hearing advised the applicant that if she failed to attend, the Application could be dismissed as abandoned. The Notice of Summary Hearing was sent to the applicant by regular mail at the same address that was used for the Case Assessment Direction. The Notice of Summary Hearing was not returned to the Tribunal.

4On February 14, 2012, the applicant sent a Request for Order During Proceeding (“Request for Order”) requesting her complaint go directly to a hearing. The applicant’s address on the Request for Order was the same address that was used by the Tribunal to send the Case Assessment Direction and the Notice of Summary Hearing. The applicant indicated on the Request for Order that information should be sent to her by mail and e-mail.

5The summary hearing took place on March 15, 2012. The applicant failed to attend.

6On March 22, 2012, the Tribunal issued a decision dismissing the Application as abandoned by the applicant (the “Decision”). The Decision was sent by courier and by regular mail to the applicant at the same address that was used by the Tribunal to send the Case Assessment Direction and the Notice of Summary Hearing.

7On April 5, 2012, the applicant filed a Request for Reconsideration of the Decision, as provided for in section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The applicant confirmed receipt of the Decision. The applicant submitted twenty-six pages of detailed submissions to support her Request, the bulk of which related to other Applications filed by the applicant before the Tribunal. The address on the Request for Reconsideration was the same address that was used by the Tribunal to send the Case Assessment Direction and the Notice of Summary Hearing.

DECISION

8The Request for Reconsideration is dismissed.

RELEVANT LEGISLATIVE PROVISIONS

9Sections 45.7 and 45.8 of the Code provide the Tribunal with authority to reconsider its decisions while confirming the finality of the Tribunal’s decisions:

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.

Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

45.8 Subject to section 45.6 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.

10Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration as well as a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers (Practice Direction #4 Reconsideration).

11Relevant to this Decision are the following Rules:

25.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision.

25.3. A request for reconsideration must include:

(a)reasons for the request, including the basis on which the Tribunal is asked to grant the request for reconsideration;

(b)submissions in support of the request; and

(c) the remedy or relief sought.

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;

(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;

(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 and orders.

12Practice Direction #4 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.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

ANALYSIS

13The applicant provided detailed submissions on her Request for Reconsideration, most of which do not relate to this Application. With respect to this Application, the applicant stated:

(a) She did not confirm her availability to attend the summary hearing on March 15, 2012;

(b) She did not receive a telephone call from the Tribunal informing her of what was going on with her case;

(c) She did not receive submissions from the respondents;

(d) She did not get her case assessed, as is her right.

14The issue on the Reconsideration Request is whether the applicant received proper notice of the summary hearing, a basis for reconsidering the Decision pursuant to Rule 25.5(b). For the following reasons, I find that she did receive the Notice of Summary Hearing dated December 15, 2011:

(a) The Notice of Summary was sent by regular mail to the applicant at the address noted on the Tribunal file;

(b) In the Request for Reconsideration, the applicant confirmed that this is her correct address and that she had never made a request to change this address;

(c) The Notice of Summary hearing was not returned to the Tribunal;

(d) After the Notice of Summary hearing was sent on December 15, 2011, the applicant delivered a Request for Order requesting that her complaint go directly to a hearing on February 14, 2012. The return address on the Request for Order was the same address used by the Tribunal for the Notice of Summary Hearing;

(e) The applicant did not claim that she had not received the Notice of Summary Hearing in her Request for Reconsideration.

15The Tribunal’s jurisprudence is clear that Reconsideration is granted in very limited circumstances. The fact that the summary hearing date was set without consultation with the applicant is not such a circumstance. The summary hearing was directed by the Tribunal, at its own initiative, to determine whether the Application had a reasonable prospect of success. There is no absolute right to have an Application determined on its merits.

16I am satisfied that the applicant had proper notice of the summary hearing. The applicant asked the Tribunal to communicate with her by mail or e-mail and at no time prior to the summary hearing date, did the applicant provide a change of address. The applicant did provide a change of address to the Tribunal on May 8, 2012, after the summary hearing on March 15, 2012.

17Given that the applicant had received proper advance notice of the date and time of the summary hearing, that she voluntarily chose not to attend the summary hearing, and that she was advised in writing that if she failed to attend the summary hearing, that her Application could be dismissed as having been abandoned, the Request for Reconsideration is denied.