Freitag v. Barrie (City), 2012 HRTO 354

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Henry Freitag

Applicant

-and-

The Corporation of the City of Barrie

Respondent

RECONSIDERATION DECISION

Adjudicator: Brian Eyolfson

Date: February 17, 2012

Citation: 2012 HRTO 354

Indexed as: Freitag v. Barrie (City)

WRITTEN SUBMISSIONS

Henry Freitag, Applicant ) Self-represented

1On September 22, 2011, the Tribunal issued its Decision in this Application, 2011 HRTO 1757, dismissing the Application on the basis that the applicant was deemed to have abandoned the Application. The applicant has asked the Tribunal to reconsider its Decision.

BACKGROUND

2In a Case Assessment Direction, dated March 23, 2011, the Tribunal indicated that this matter would be scheduled for a two-hour hearing by conference call, and that a Notice of Hearing with call-in information would follow.

3On July 6, 2011, the Tribunal issued a Notice of Confirmation of Hearing to the parties, confirming that a hearing would take place on September 20, 2011, commencing at 1:30 p.m., by conference call. The Notice stated, "You must connect to the call by dialing [one of two telephone numbers] and entering Conference ID…" The Notice was delivered to the applicant at the last address provided by the applicant to the Tribunal and was not returned as undeliverable.

4The applicant was not in attendance at the commencement of the scheduled conference call hearing. In accordance with its usual practice, the Tribunal waited until 2:00 p.m. before proceeding. At 2:00 p.m. the applicant was not in attendance, nor had the applicant otherwise communicated with the Tribunal to explain the failure to attend. In the circumstances, the Tribunal was satisfied that the applicant had notice of the hearing, and the Application was dismissed.

5The Tribunal confirmed its decision dismissing the Application as abandoned on September 22, 2011, and the Decision was sent to the applicant by regular mail and courier on September 26, 2011.

THE REQUEST FOR RECONSIDERATION

6In correspondence to the Tribunal dated September 28, and received September 29, 2011, the applicant submitted that he did not abandon his Application. He stated that he was waiting for a call from the Tribunal from 13:15 until 14:00 on September 20, 2011, and that there was no call to his number.

7On November 30, 2011, the Tribunal wrote to the applicant, copied to the respondent, and indicated that it appeared that the applicant wished to have the Tribunal's Decision dated September 22, 2011 reconsidered. The Tribunal directed the applicant to deliver to the respondent and file with the Tribunal a Request for Reconsideration.

8On December 9, 2011, the Tribunal received the applicant's Request for Reconsideration, wherein the applicant reiterated that he was waiting for a call from the Tribunal on September 20, 2011, and that there was no call to his number.

DECISION

9Under 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.

10The 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 (Practice Direction on Reconsideration, January 2008 amended June 2008). Most relevant to this Decision are Rules 26.1 and 26.5 which state:

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.

11The Tribunal's Practice Direction on Reconsideration begins with the following statement:

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.

12As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

13The applicant relies on Rule 26.5(b) of the Tribunal's Rules; however, for the following reasons, there is nothing before me to suggest that the applicant did not receive notice of the hearing through no fault of his own.

14It is clear from the applicant's own materials that he was aware that a hearing was scheduled by conference call on September 20, 2011. There is no indication that the applicant did not receive the Tribunal's Case Assessment Direction which indicated that a conference call would be scheduled and that "call-in information" would follow. It also appears that the applicant received the Tribunal's Notice of Confirmation of Hearing which clearly indicated that the applicant was to connect to the call by dialling one of two telephone numbers and entering a "Conference ID". There is also no indication that the applicant attempted to communicate with the Tribunal until his correspondence dated September 28, 2011, was received by the Tribunal on September 29, 2011, three days after the Tribunal's Decision dismissing the Application was mailed and couriered to the applicant and nine days after the scheduled hearing.

15Considering all of the circumstances, I find that the applicant in this case has not met the burden of establishing either that he did not receive notice of the hearing through no fault of his own, or any of the other threshold criteria justifying reconsideration.

16The Reconsideration Request is denied.