Lue v. Pantorama Industries Inc., 2012 HRTO 1360

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Analiza Lue

Applicant

-and-

Pantorama Industries Inc.

Respondent

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta

Date: July 10, 2012

Citation: 2012 HRTO 1360

Indexed as: Lue v. Pantorama Industries

1On December 23, 2011, following a hearing that was not attended by the respondent company, the Tribunal issued a Decision in which it granted the Application, finding that the applicant had established discrimination in respect of employment on the basis of family status (Lue v. Pantorama Industries, 2011 HRTO 2307). On January 17, 2012, the respondent company filed a Request for Reconsideration of that Decision.

2A respondent to a Request for Reconsideration is not required to respond unless directed to do so by the Tribunal. In the circumstances of this Request, the Tribunal deemed it necessary to seek submissions from the applicant, Analiza Lue. Those submissions have now been received. The respondent company has also filed a Reply.

Reconsideration Decision

3Section 45.7 of the Human Rights Code, R.S.O. 1990 c. H.19, (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.

4It is also useful 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.

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

5In its Form 20, the respondent company indicates that the ground under which it seeks to have the Decision reconsidered is that it was entitled to notice of the proceedings but, through no fault of its own, did not receive notice that a hearing was scheduled to take place. The Tribunal file indicates that the Notice of Hearing was sent by regular mail to the address provided by the respondent in all previous communication.

6The respondent company acknowledges that it did receive a copy of the Decision of the Tribunal, which was sent by courier. In the Request for Reconsideration, the respondent indicates that the Decision was sent to the incorrect address but, by coincidence, the lawyer for the respondent company happened to be wandering the hallways at the same time as the courier company’s employee and the Decision was delivered to the company as a result.

7I note that there is only one address in the Application file for the respondent company and that the courier records show that the Decision was sent to that address. It is the same address to which the Notice of Hearing was sent and from which the Request for Reconsideration was sent to the Tribunal.

8Parties to legal proceedings are entitled to receive notice of proceedings and be heard. The respondent company in this Application did file a timely Response and participated in a scheduled mediation. It argues that had it received notice that a hearing was scheduled, it would have appeared and participated. Finally, it argues that it is difficult for it to prove that it did not receive something sent to it by regular mail but that its conduct throughout the life of the Application indicates that it intended to respond fully to the Application.

9I agree that it would be difficult to prove a negative and for the respondent company to establish conclusively that it did not receive mail sent to its address. Given the respondent’s prior compliance with the Rules and timely participation until the date of hearing, I am prepared to accept that the respondent company did not receive the Notice of Hearing and was unable to participate in the process as a result of lack of notice.

10As such, the Request for Reconsideration is granted. A new hearing on the merits will be scheduled and the parties will receive notice of next steps.