Rezza v. Central Community Care Access Centre, 2012 HRTO 1813

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Felina Rezza Applicant

-and-

Central Community Care Access Centre Respondent

RECONSIDERATION DECISION

Adjudicator: Brian Eyolfson Date: September 21, 2012 Citation: 2012 HRTO 1813 Indexed as: Rezza v. Central Community Care Access Centre

written submissions

Felina Rezza, Applicant Sidney Hagler, Counsel

Central Community Care Access Centre, Respondent James Henderson, Counsel

Introduction

1On May 4, 2012, the Tribunal issued a Decision in this matter, 2012 HRTO 885, dismissing the Application as abandoned. The applicant has asked the Tribunal to reconsider its Decision.

BACKGROUND

2This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 1, 2011.

3On December 13, 2011, the Tribunal issued a Notice of Mediation to the parties, confirming that mediation of the Application was scheduled for February 13, 2012. The Notice was sent to the applicant’s counsel by regular mail at the address provided in the Application, and was not returned as undeliverable.

4By letter to the Tribunal dated December 23, 2011, and copied to applicant’s counsel, respondent’s counsel advised that the respondent was unable to attend mediation on February 13, 2012, and asked that the mediation be rescheduled to one of four possible dates that the applicant’s counsel had agreed to when the parties consulted with each other. One of these dates was March 23, 2012.

5On January 10, 2012, the Tribunal issued a Notice of Rescheduled Mediation to the parties, confirming that the mediation was rescheduled to March 23, 2012. This Notice was also sent to the applicant’s counsel by regular mail at the address provided in the Application, and was not returned as undeliverable.

6The applicant did not attend the scheduled mediation on March 23, 2012, and did not communicate with the Tribunal to explain the failure to attend.

7On April 10, 2012, the Tribunal wrote to the applicant’s counsel, directing that the applicant advise the Tribunal and the respondent whether she intended to proceed with the Application. The letter warned that if the applicant did not respond to the letter by April 20, 2012, the Tribunal may deem the Application to be abandoned and dismiss it. The letter also advised the applicant that the Tribunal was unable to reschedule mediation, and that if she intended to pursue the Application, it would be placed in the queue to be scheduled for a hearing. This letter was also sent to the applicant’s counsel by regular mail at the address provided in the Application.

8On May 4, 2012, the Tribunal issued its Decision, deeming the applicant to have abandoned her Application, as the applicant had not responded to the Tribunal’s letter dated April 10, 2012, nor had the letter been returned as undeliverable. The Tribunal’s Decision was sent to the applicant’s counsel by fax.

THE REQUEST FOR RECONSIDERATION

9By fax to the Tribunal, dated May 17, 2012 and copied to the respondent, counsel for the applicant advised that he was shocked to find out that the matter was dismissed. He indicated that he received neither the Notice of Rescheduled Mediation dated January 12 [sic], 2012, nor the Tribunal’s letter dated April 12 [sic], 2012. He submitted that the Tribunal never sent him these two items, and that, had he received the Notice of Rescheduled Mediation, he would have attended mediation with the applicant, and had he received the Tribunal’s letter, he would have responded. He asked that the mediation be rescheduled.

10By letter dated May 18, 2012, copied to the applicant’s counsel by fax, the respondent indicated that it opposed the applicant’s request that mediation be rescheduled, noting among other things that the Application had been dismissed by a decision of the Tribunal.

11By fax to the Tribunal, dated May 22, 2012 and copied to the respondent, counsel for the applicant noted that the “non-attendance” was for a voluntary mediation, rather than a hearing. He also suggested that his office should have been contacted by telephone when he and his client did not attend the mediation. He reiterated that he did not receive the “notifications”, and that, had he known about the mediation, he would have attended with his client, and had he received the Tribunal’s April 10, 2012 letter, he would have responded within the applicable time frame.

12By letter dated May 23, 2012, sent to the applicant’s counsel by regular mail and fax, the Tribunal responded to the parties’ May 17 and 18, 2012 correspondence, indicating that, as a final decision had been issued, the applicant would have to deliver and file a Request for Reconsideration.

13By fax dated May 28, 2012, counsel for the applicant acknowledged receipt of the Tribunal’s May 23, 2012 letter. On May 30, 2012, the applicant’s Request for Reconsideration was delivered to the respondent, and filed with the Tribunal, by fax.

14In the Request for Reconsideration, the applicant’s counsel reiterates that he received neither the Notice of Rescheduled Mediation, nor the Tribunal’s letter dated April 10, 2012 that warned the applicant that a failure to respond to the letter within ten days could result in the Tribunal deeming the Application to be abandoned. The applicant’s counsel submits that the applicant did not attend the rescheduled mediation because he was never notified of the rescheduled date. He also submits that his office was not contacted by telephone at any point, nor was his office faxed. He submits that he cannot attend or respond if he is not made aware of a need to attend or respond. He also submits that “the benefit of the doubt” should be provided to the applicant, and that the matter should be “restored”.

15On June 19, 2012, the respondent filed a Response to the applicant’s Request for Reconsideration, submitting that the Tribunal should not exercise its discretion to overturn its May 4, 2012 Decision. Referring to the the Tribunal’s Practice Direction on Reconsideration, the respondent submits that the applicant has failed to provide any extraordinary or compelling circumstances that would outweigh the public interest in the finality of orders and decisions. The Tribunal’s Practice Direction on Reconsideration states, in part, as follows:

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.

16More particularly, the respondent submits that the applicant is deemed to have received the Tribunal’s January 10, 2012 Notice of Rescheduled Mediation and April 10, 2012 letter, pursuant to Rule 1.22 of the Tribunal’s Rules of Practice. Rule 1.22 provides as follows: “Where a document is delivered by a party or sent by the Tribunal, receipt is deemed to have occurred when delivered or sent: (a) by mail, on the fifth day after the postmark date; …” The respondent also submits that the applicant’s counsel has failed to provide the Tribunal with any plausible explanation as to why he did not receive the two letters, in light of the fact that he received earlier correspondence from the Tribunal mailed to the same address. In addition, the respondent submits that the applicant’s counsel failed to act promptly after receipt of the Tribunal’s May 4, 2012 Decision.

DECISION

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 mayreconsider its decision in accordance with its rules.

18The Tribunal has issued Rules governing reconsideration requests. Rule 26 of the Tribunal’s Rules states as follows:

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 applicant relies upon subsection (b) of Rule 26.5, above.

20With respect to the respondent’s argument that the applicant is deemed to have received the Tribunal’s January 10, 2012 Notice of Rescheduled Mediation and April 10, 2012 letter, the Tribunal has noted that when a document is sent by regular mail to the address provided by a party, and not returned as undeliverable, there is a presumption that the document has been successfully delivered to the party; however, this presumption can be rebutted by evidence that, despite the fact the document appears to have been sent to a party and not returned to the Tribunal, it was not received by the party. See Gothard v. Gallagher, 2011 HRTO 1776, at para. 11.

21In the present case, I find it quite troubling that the applicant’s counsel asserts that he did not receive both the Tribunal’s January 10, 2012 Notice of Rescheduled Mediation, and April 10, 2012 letter, that were sent to him by regular mail at the address provided for him in the Application. These two items do not appear to have been returned to the Tribunal as undeliverable. In addition, it appears that the applicant previously received correspondence from the Tribunal at the address provided for the applicant’s counsel in the Application. In particular, the applicant’s counsel sought an extension of time to file a Reply to the respondent’s Response and Notice of Request to Dismiss, which was sent by regular mail to the address for the applicant’s counsel provided in the Application.

22On the other hand, the Tribunal has recognized that it can be difficult for a party to prove that the party did not receive something sent by regular mail. See Gothard, supra, at para.13, and Lue v. Pantorama Industries, 2012 HRTO 1360, at paras. 8 and 9. While this Application was dismissed because it was deemed to have been abandoned by the applicant, it appears that, prior to not attending the rescheduled mediation, the applicant had actively participated in the Tribunal’s process. In particular, the applicant sought and was granted an extension of time to file a Reply to the respondent’s Response and Notice of Request to Dismiss, and did so by the revised deadline. The parties also confirmed that they were interested in mediation, and provided the Tribunal with agreed upon dates for the rescheduling of mediation. In the circumstances, based on the record of their participation before the Tribunal, I accept the applicant’s counsel’s submissions that, had he known about the mediation, he would have attended with the applicant, and that, had he received the Tribunal’s April 10, 2012 letter, he would have responded within the applicable time frame. Throughout his materials, the applicant’s counsel has been adamant that he did not receive the Tribunal’s Notice of Rescheduled Mediation and April 10, 2012 letter sent by regular mail.

23I also note that the present Application provided an email address and a fax number, in addition to a mailing address, for the applicant’s counsel, and indicated that the best way to send information to the applicant’s counsel is by fax. I also note that, with the exception of one email, it appears that the applicant’s counsel has communicated with the Tribunal exclusively by fax throughout this proceeding. The Tribunal’s Practice Direction on Communicating with the Tribunal states that, as a general rule, the Tribunal will send key documents to the parties by regular mail. The Tribunal may also send other documents to a party by email or fax if a party indicates that it is their preferred means of communication. While the Tribunal was in no way required to correspond with the applicant by means other than regular mail, I have nevertheless considered that the Tribunal’s Notice of Rescheduled Mediation and April 10, 2012 letter were sent to the applicant’s counsel by regular mail only.

24With respect to the respondent’s assertion that the applicant’s counsel failed to act promptly after receipt of the Tribunal’s May 4, 2012 Decision, the applicant’s counsel did write to the Tribunal, copied to the respondent, within two weeks of that Decision, and delivered and filed a Request for Reconsideration within the 30-day time limit in the Tribunal’s Rules.

25Lastly, in addition to the considerations set out above, I note that the Application was dismissed as abandoned in the context of the applicant failing to attend a voluntary mediation, and failing to respond promptly to a letter following up on her failure to attend. This is not a case where an Application was dismissed as abandoned following a hearing where the respondent, but not the applicant attended.

26In all of the circumstances, based on the record before me, I am satisfied that the applicant did not intend to abandon her Application. While I do not make the finding that the applicant’s counsel did not receive the Notice of Rescheduled Mediation and subsequent letter, I am satisfied in the circumstances of this case that factors exist that outweigh the public interest in the finality of Tribunal decisions. In my view, this is an appropriate case in which to exercise my discretion to grant the applicant’s Request for Reconsideration in light of Rule 26.5(d) of the Tribunal’s Rules.

27The applicant’s Request for Reconsideration is granted, and the Tribunal’s Decision, 2012 HRTO 885, dismissing the Application is set aside.

Dated at Toronto, this 21st day of September, 2012.

”signed by”

Brian Eyolfson Vice-chair