Althea Elrington v. Saint Elizabeth Health Care, Shirlee Sharkey, Susan Walsh and Christina Bowen, 2012 HRTO 1518

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Althea Elrington

Applicant

-and-

Saint Elizabeth Health Care, Shirlee Sharkey, Susan Walsh and Christina Bowen

Respondents

RECONSIDERATION DECISION

Adjudicator: Brian Cook

Date: August 2, 2012

Citation: 2012 HRTO 1518

Indexed as: Elrington v. Saint Elizabeth Health Care

WRITTEN SUBMISSIONS

Althea Elrington, Applicant

Self-represented

Saint Elizabeth Health Care, Shirlee Sharkey, Susan Walsh And Christina Bowen

Margaret Taylor, Representative

INTRODUCTION

1On February 24, 2012 the Tribunal issued its Decision in this Application, 2012 HRTO 385. The Decision dismissed the Application because the applicant did not appear at a telephone conference hearing scheduled by the Tribunal to deal with the Application. The Decision found that the applicant had abandoned the Application and it was dismissed on that basis. On April 25, 2012, the applicant submitted a Request for Reconsideration. According to the Request, the applicant did not receive notice of the telephone conference hearing.

BACKGROUND

2The telephone conference hearing was held on February 17, 2012. The hearing was scheduled pursuant to a Case Assessment Direction from the Tribunal, dated October 6, 2011. The Case Assessment Direction directed that a telephone conference summary hearing would be scheduled to determine if there was no reasonable prospect that the Application could succeed. The Tribunal issued a Notice of Summary Hearing on December 6, 2011, scheduling the February 17, 2012 summary hearing. The Notice was sent to the respondents and to Cecil Norman, a paralegal. The Application identified Mr. Norman as the applicant’s representative. The Notice was not returned to the Tribunal.

3On February 17, 2012, the respondents called into the telephone conference call. Neither the applicant nor her representative called in. After the hearing, the Tribunal issued Decision 2012 HRTO 385, dismissing the Application because it appeared that the applicant had abandoned the Application after receiving Notice of the summary hearing.

4The Request for Reconsideration provides few details. It does, however, indicate that the applicant did not receive notice of the hearing “due to eviction from residence”.

5The Tribunal’s Rules require that a Request for Reconsideration be filed within 30 days of the date of the Decision. In this case, the Decision is dated February 24, 2012 and the Request was filed on April 25, 2012, more than 30 days after the date of the Decision. The Request indicates that the reason for the delay was that the applicant did not receive the Decision until April 24, 2012. It also indicates that the applicant experienced significant health problems that required surgery on February 2, 2012.

6The respondents oppose the Request. They submit that the Tribunal provided Notice of the summary hearing to Mr. Norman, who the applicant identified as her representative. The respondents further submit that the applicant has not provided medical confirmation of the medical condition which she says was the reason for not filing the Request within 30 days of the date of the Decision.

THE RECONSIDERATION TEST

7Under 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.

8The 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. Most relevant to this 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.

9In this case, the applicant states that she did not receive notice of the proceeding or the hearing.

ANALYSIS

10The Request identifies two factors that the applicant says contributed to her failure to attend the summary hearing and to file the Request within 30 days of the date of the Decision. She says that she was evicted from her accommodation and also experienced significant health issues.

11The Notice of Summary Hearing was not sent to the applicant. In accordance with the Tribunal’s normal practice, it was sent to the person she identified as her representative, in this case Mr. Norman. The Notice was sent by mail on December 6, 2011. It was received by the respondents and there was no indication that the Notice sent to Mr. Norman was not delivered to him. However, on January 25, 2012, Mr. Norman sent a letter to the Tribunal. The letter is rather ambiguous. It indicates that Mr. Norman was in receipt of documents from the respondents “further to the Case Assessment Direction dated October 6, 2011 and a Notice of Summary Hearing dated December 6, 2011.” However, it also states:

It has come to my attention that we have not received the Notice of Summary Hearing which is dated December 6, 2011. Please advise the date of the Summary Hearing and any instructions that were included.

12On January 26, 2012, the Tribunal forwarded a copy of the Notice of Summary Hearing to Mr. Norman.

13The Request indicates that the applicant underwent surgery on February 2, 2012, approximately two weeks prior to the scheduled summary hearing. The Request does not indicate when the applicant was evicted from her residence or when this happened in relation to the surgery.

14The Decision in this case dismissed the Application on the grounds that the applicant was deemed to have abandoned the Application because she failed to attend the summary hearing and because it appeared that her representative had received notice of the summary hearing.

15The Tribunal Decisions relied upon by the respondents in opposing the Request for Reconsideration involve cases where an applicant failed to attend a hearing when the applicant had notice of the hearing. The issue before the Tribunal in those cases was whether the applicant had provided a sufficient explanation for the failure to appear. In the present case, the issue is whether the applicant, received notice of the hearing.

16It would appear that Mr. Norman, the applicant’s then representative, received the Notice of Summary Hearing, but it appears he may not have received it until January 26, 2012. The applicant states she did not receive the Notice because she had been evicted. This does not explain why the applicant did not inform Mr. Norman or the Tribunal of her change in contact information. However, according to the applicant, she underwent surgery a few days after the Tribunal resent the Notice of Summary Hearing to Mr. Norman. This might explain why she did not keep Mr. Norman apprised of her changed situation, especially if she was not aware that the summary hearing had been scheduled.

17There is still no explanation for why Mr. Norman did not contact the Tribunal to advise that he would not be attending the summary hearing. However, in the circumstances of this case, I do not believe it would be fair to hold the applicant to account for the conduct of her representative.

18As the respondents point out, the Request was filed with the Tribunal on April 25, 2012 and the Decision is dated February 24, 2012. The Request was accordingly not filed within 30 days of the Decision as required by the Tribunal’s Rules. However, the applicant states that she only received the Decision on April 24, 2012. In the circumstances of this case, it is plausible that there was a delay before the applicant received the Decision and I am satisfied that it is appropriate to allow the Reconsideration to proceed even though it was not filed within 30 days of the Decision.

19On the basis of the documents in the file and the Request, and also considering the respondents’ submissions in response to the Request, I conclude that it is appropriate to reconsider the Decision in this case. I find that there is some doubt about whether the applicant actually knew that the summary hearing had been scheduled. I am satisfied that she did not intend to abandon the Application. I have also considered the applicant’s information about her personal circumstances and the fact that the hearing in this case was a summary hearing. The additional prejudice to the respondent of having to again prepare for a summary hearing by telephone conference call is less significant than having to prepare for a full hearing on the merits. In my view, these factors, taken together, outweigh the public interest in the finality of Tribunal decisions.

20For all of these reasons, the request for reconsideration is granted.

DECISION

21The Reconsideration Request is granted. The Tribunal will re-schedule a summary hearing by telephone conference call.