HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gerda Zablockine Applicant
-and-
Cochrane Food Bank Inc. Respondent
RECONSIDERATION DECISION
Adjudicator: Eric Whist Date: October 24, 2012 Citation: 2012 HRTO 2009 Indexed as: Zablockine v. Cochrane Food Bank Inc.
WRITTEN SUBMISSIONS
Gerda Zablockine, Applicant Self-represented
Cochrane Food Bank Inc., Respondent Claudia Scherman, Counsel
INTRODUCTION
1The applicant filed a Request for Reconsideration of the Tribunal’s Decision, 2012 HRTO 1831, dated September 25, 2012. The applicant provided brief written submissions in support of her Request.
2The Application was dismissed after the applicant failed to respond to, or comply with, a Case Assessment Direction (CAD) issued by the Tribunal. The CAD reminded the applicant of the requirement that she file pre-hearing documents and warned her that a failure to produce these documents within seven days of the date of the CAD may result in the dismissal of her Application.
BACKGROUND
3The applicant filed her Application on April 7, 2011. As required, she provided a mailing address in Cochrane, Ontario and an email address on her Application as part of her “contact information” and indicated that the best way for the Tribunal to send her information was by regular mail.
4The parties initially agreed to mediation which did not take place. On February 27, 2012 the Tribunal sent Notice of Confirmation of Hearing to the parties scheduling a hearing for October 22, 23 and 24, 2012. The applicant’s Notice was sent by regular mail to her Cochrane address. It was not returned as undeliverable to the Tribunal.
5Importantly, for the purposes of this decision, the Notice of Confirmation of Hearing outlined the parties’ obligations under Rules 16 and 17 of the Tribunal’s Rules of Procedure. Rules 16 and 17 require a party to file a list of witnesses, a summary of their evidence, and a copy of the documents intended to be relied upon, no later than 45 days prior to the hearing. The Notice of Confirmation of Hearing sent to the parties in this case, indicated that they needed to file their required pre-hearing documents no later than September 7, 2012.
6The applicant failed to comply with her obligations to disclose pre-hearing documents as directed by the Tribunal in its Notice of Confirmation of Hearing. As a consequence the Tribunal issued a CAD to the applicant on September 12, 2012 stating that failure to disclose the required materials within seven days may result in the dismissal of the Application.
7The CAD quoted from C.D. v. Wal-Mart Canada, 2010 HRTO 426 which highlights the importance of exchanging documents and witness statements in the Tribunal process. It states at para. 7:
The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent. .
8The Tribunal issued the CAD on September 12, 2012. The CAD was sent by regular mail to the applicant at her Cochrane mailing address. It was not returned as undeliverable to the Tribunal. The Tribunal dismissed the Application on September 25, 2012 for non-compliance with the Tribunal’s requirement to disclose pre-hearing materials first communicated to the applicant in the February 27, 2012 Notice of Confirmation of Hearing and then, again, in the Tribunal’s September 12, 2012 CAD.
REQUEST FOR RECONSIDERATION
9The applicant submits in her Request for Reconsideration, dated October 11, 2012, that she did not receive a copy of the CAD mailed to her Cochrane mailing address, at least on a timely basis. The applicant submits that she was in contact with the Tribunal “a few months ago” at which time she explained that she was not living in Cochrane and asked that she be contacted by email. The applicant submits this change was necessary as she was living in Sudbury for medical reasons. The applicant submits that more recently she has been in Europe visiting family. She submits that it was not until she returned to Cochrane from her European trip in September 2012 that she got the Tribunal’s September 12, 2012 CAD and that it was 2 days later that she received the Tribunal’s Decision dated September 25, 2012 dismissing her Application.
10The respondent filed a Response opposing the applicant’s Request for Reconsideration. The respondent submits that the applicant never informed the respondent that she would be away from Cochrane other than stating in December 2011 that she would not be returning to Cochrane until “late spring of 2012”. The respondent submits that the applicant never communicated to the respondent that she would not be able to review correspondence and/or other documents sent to her mailing address in Cochrane or that future communications would need to be sent to the applicant at either of the email addresses the applicant has used.
11The respondent submits that if the applicant was absent from her home in Cochrane it was the applicant’s responsibility, as it is the responsibility of all parties to proceedings before the Tribunal, to inform the Tribunal and other parties of any changes in contact information or address for service.
12The respondent further submits that the applicant would have been aware of the contents of the September 12, 2012 CAD on a timely basis. The respondent submits that it copied the applicant by email on September 18, 2012 when the respondent wrote to the Tribunal to clarify what obligations the respondent had in relation to the Tribunal’s September 12, 2012 CAD. The respondent submits that in its September 18, 2012 correspondence the respondent made a specific point of directing the applicant’s attention to the possibility that her Application would be dismissed if she was not to respond to the Tribunal’s September 12, 2012 CAD. The respondent submits that on September 19, 2012 the applicant responded to an email the respondent sent to her on September 17, 2012. The respondent submits that the applicant was, or ought to have been, aware of the Tribunal’s September 12, 2012 CAD given the email exchange between the respondent and the applicant on September 17, 18 and 19, 2012 and ought to have responded in light of the potential dismissal of her Application.
DECISION
13Under section 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The relevant Tribunal Rule is Rule 26.5 which reads, in part, as follows:
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 and orders.
14The applicant indicates in her Request for Reconsideration that she relies upon Rule 26.5(b). Rule 26(5)(b) refers specifically to a party not receiving notice of a proceeding or a hearing. In this particular case the issue is the applicant not receiving a CAD. However, not receiving a CAD in which the Tribunal indicates that it might dismiss an Application has as serious a consequence as not receiving a notice of a proceeding or a hearing. Under the circumstances, if I am satisfied that if the applicant did not receive the Tribunal’s September 12, 2012 CAD, through no fault of her own, this would be grounds for allowing her Request for Reconsideration pursuant to Rule 26.5(b) or under the broader criteria set out in 26.5(d).
15However, the applicant’s Request for Reconsideration is denied. I am satisfied, based on the information before me, that the applicant received the Notice of Confirmation of Hearing mailed to her Cochrane address in February 2012. This was not disputed. I am similarly satisfied that the applicant received the September 12, 2012 CAD in that it was successfully mailed to an address provided to the Tribunal by the applicant. This was not disputed.
16I am of the view that for the purposes of communicating with the applicant that it was reasonable for the Tribunal to rely on the mailing address provided by the applicant in her Application and that it was incumbent on the applicant to maintain access to this address in order to remain in effective contact with the Tribunal. I note that the Tribunal’s general rule, as is outlined in the Tribunal’s Practice Direction on Communicating with the Tribunal, is to send key documents to parties by regular mail.
17The applicant’s contention however, is that she did not see or know of the CAD in a timely fashion, through no fault of her own. She submits that she advised the Tribunal that she wanted to be contacted by email given that there was a change in her circumstances and that she would not be living in Cochrane, at least for some period of time. The applicant did not provide any confirmation of this request or details of when she may have communicated it to the Tribunal. It is not clear when the applicant returned to Cochrane.
18It is also not clear from the applicant’s submissions why the Tribunal’s reliance on mailing the CAD to her Cochrane address was unreasonable or inappropriate. The applicant has not indicated that she continued to live somewhere other than Cochrane after late spring 2012 and more importantly, in September 2012. Nor has she indicated why, if she was not physically present in Cochrane in September 2012, she could not receive information or mailings sent to her Cochrane address.
19I find that the CAD was properly served. It was duly sent to the applicant in the manner the applicant identified on her Application and in accordance with the Tribunal’s general practice for sending important documents. Under these circumstances, the applicant has responsibilities to ensure she receives this information. I am not satisfied that if she was away from Cochrane, in this case it appears on a trip to Europe, that she can rely on a claim that she did not receive the CAD through no fault of her own.
20I am also not satisfied that the applicant did not have some knowledge of the Tribunal’s September 12, 2012 CAD, such that she could have responded to the CAD on a timely basis, or at least been able to communicate with the Tribunal that she was aware of the CAD but needed more time to respond.
21The respondent submits that on September 18, 2012 it sent a letter to the Tribunal by email seeking clarification about the respondent’s obligations in response to the Tribunal’s September 12, 2012 CAD. The respondent submits that it copied its September 18 email and attached letter to the applicant at an email address provided by the applicant. The respondent submits this was a current email for the applicant because the applicant used this email address the next day (on September 19, 2012) to respond to the respondent.
22The Tribunal did receive the respondent’s email and letter on September 18, 2012. The letter states, in part:
On September 14 2012 I received a Case Assessment Direction form the Tribunal dated September 12, 2012 The adjudicator, Eric Whist, directed the applicant “to immediately file the materials required under Rules 16 and 17 “ and indicated that if the applicant did not do so within 7 days of the Case Assessment Direction the Application may be dismissed as abandoned. ..
I am unclear about the respondent’s obligations as set out in the case assessment Direction. My present understanding is that IF the Applicant complies with the Case Assessment Direction then (and only then) the Respondent must deliver their documents and witness statements within 7 days of receiving the Applicant’s If on the other hand, the Applicant does not comply then I presume the only fair recourse would be to dismiss the Application and thus, cancel the hearing.
23On September 19, 2012 the Tribunal responded to the respondent’s September 18, 2012 correspondence and copied the applicant by email at the email address the respondent used for the applicant in its correspondence with the Tribunal. The Tribunal states in its email:
The HRTO is in receipt of your email with attachment. Direction to the parties is in paragraph 4 of the Case assessment Direction (CAD) issued September 12, 2012. The timelines for filing materials and the consequences for not filing are as indicated in the CAD. The CAD indicates that the respondent is to file materials within one week of receiving the applicant’s documents. . Should the applicant not submit the required material, as directed, the adjudicator will then determine next steps which may include dismissal of the Application as abandoned. (emphasis added).
24I find it probable that the applicant had information from the respondent and perhaps more importantly from the Tribunal by email on September 18 and 19, 2012 that should have alerted her to the importance of the Tribunal’s September 12, 2012 CAD and the need to be in communication with the Tribunal. However, the applicant did not contact the Tribunal to alert it to concerns the applicant may have had about being able to respond to the CAD at any time before the Tribunal issued its decision dismissing the Application on September 25, 2012. The fact that the applicant failed to contact the Tribunal at this time is a significant factor in the Tribunal’s consideration of her Request for Reconsideration.
25Human rights applications are serious matters. As the Tribunal stated in Ouwroulis v. New Locomotion, 2009 HRTO 335 at paras. 4 - 7:
When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.
Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.
The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed. [emphasis added] .
26In my view the Tribunal provided the applicant with a copy of the CAD when it sent it to the applicant’s Cochrane address. The fact that the applicant may not have been in Cochrane at that time does not, based on the information before the Tribunal, lead the Tribunal to find that the applicant could not have known of the CAD and its contents. Indeed there is evidence before the Tribunal that she probably did have information before her about the CAD and its contents that would have allowed her to respond to the Tribunal on a timely basis. She did not.
27Reconsideration is only granted in exceptional circumstances: see Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14. In this case, there is no information that satisfied me that the applicant did not receive the Tribunal’s September 12, 2012 CAD or that she could not have responded to this email in a timely way. I do not find this is a case in which there are circumstances that outweigh the important interest in the finality of Tribunal decisions.
28The Request for reconsideration is dismissed.
Dated at Toronto, this 24th day of October, 2012.
”signed by”
Eric Whist Vice-chair