Vipond v. Ben Wicks Pub and Bistro, 2013 HRTO 1055

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hillary Vipond

Applicant

-and-

Ben Wicks Pub and Bistro and David Doherty

Respondents

RECONSIDERATION DECISION

Adjudicator: Mary Truemner

Date: June 13, 2013

Citation: 2013 HRTO 1055

Indexed as: Vipond v. Ben Wicks Pub and Bistro

WRITTEN SUBMISSIONS

David Doherty, Respondent

Ernest J. Guiste, Counsel

Introduction

1In this Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleged sexual harassment, sexual advances, reprisal and poisoned work environment with respect to employment on the basis of actions by the personal respondent who she described as her supervisor and an owner of the corporate respondent. The Tribunal issued a decision on April 25, 2013, (“the Decision”) finding against the respondents, and the personal respondent has filed a Request for Reconsideration. This Reconsideration Decision denies the Request.

BACKGROUND

2After the Tribunal delivered the Application to both respondents using the corporate respondent’s address, which was indicated in the Application as the address for both the corporate and personal respondents, the personal respondent filed an incomplete Response on his own behalf. The corporate respondent has never responded.

3The personal respondent’s incomplete Response left blank the space in which the personal respondent was to summarize the facts and defences in support of his position. He did, however, provide his address, which was different from the corporate respondent’s address. He also indicated that the best way to send him information was by mail.

4The Tribunal sent directions by mail to the personal respondent to complete his Response, but he never did. In an Interim Decision dated March 21, 2012, 2012 HRTO 584, the Tribunal noted the respondents’ silence and lack of response to repeated Tribunal directions and to the Tribunal’s warning that not responding could lead to the Tribunal proceeding without further notice to the respondents. It ordered that the respondents were deemed to have accepted all of the allegations set out in the Application and to have waived all rights to notice or participation in the proceedings.

5On April 19, 2012, the Tribunal sent a Notice of Hearing to the respondents at the corporate respondent’s address which was used to deliver the Application to which the personal respondent responded. The Tribunal also sent the Notice to the personal respondent’s address which he provided in his incomplete Response. Neither respondent appeared at the hearing on July 24, 2012. The applicant did appear and the hearing proceeded without the respondents.

6On April 25, 2013, the Tribunal issued a decision allowing the Application and ordering various remedies, including monetary compensation for which the corporate and personal respondents are jointly and severally liable.

THE PERSONAL RESPONDENT’S REASONS FOR RECONSIDERATION

7The Request for Reconsideration provides the following reasons why the Tribunal should reconsider the Decision:

• The personal respondent was entitled to notice but, through no fault of his own, did not receive notice of the proceeding or a hearing.

• 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

DECISION

8Under 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.

9The 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 Reconsideration 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.

10The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

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.

11As 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.

12The applicant relies on Rule 26.5(b) and (c), but I find that he has not met the burden of establishing any of the threshold criteria justifying reconsideration.

Position that no Notice was received

13In his Request for Reconsideration, the personal respondent disputes the allegations in the Application, and submits that he never received the Notice of Hearing that was sent to the address he provided in his incomplete Response. He states that he moved from that address on December 1, 2011. He argues that staff at the Tribunal had communicated to him by email on June 30, 2011, with respect to the scheduling of mediation, and he had expected the Tribunal to continue communicating to him by email. (His submissions did not explain why he did not appear at the mediation).

14I do not consider Rule 26.5(b) available to the personal respondent. The real issue is whether he received fair warning that he could be deemed to have waived all rights to notice or participation in the proceedings. I find that he did receive fair warning. Well after the email communications that the personal respondent had with scheduling staff at the Tribunal about dates for mediation, the Tribunal successfully delivered an Interim Decision dated November 4, 2011 (2011 HRTO 2202) to the personal respondent at the address he provided in his incomplete Response. (The Tribunal has a record of the receipt of that Interim Decision by the personal respondent. His signature on the Proof of Delivery provided by the Tribunal’s courier matches his signature on the incomplete Response). The Tribunal also successfully delivered that Interim Decision by courier to the corporate respondent’s address.

15In that Interim Decision, the Tribunal described several instances of ignored directions to the personal respondent, and warned him that if the Tribunal did not receive a completed Response within 10 days, then the Tribunal might proceed without further notice to him. The personal respondent did not respond in any way despite knowing that he was facing the serious consequence of the Application proceeding without notice to him if he did not file a completed Response. The personal respondent did nothing to prevent the consequence of failing to respond. The personal respondent did not respond, and therefore the Tribunal deemed him and the corporate respondent to have accepted all of the allegations and to have waived all rights to notice or participation in the proceedings.

16If I am wrong to find that Rule 26.5(b) is unavailable to a respondent who has been deemed to have waived all rights to notice or participation in the proceedings, there are several reasons for which I find no merit to any argument that the personal respondent did not receive notice of the hearing through no fault of his own.

17First, even if I were to accept that the personal respondent never saw the copy of the Notice of Hearing that was sent as a courtesy to the corporate respondent’s address (which worked to reach the personal respondent when the Tribunal delivered the Application to him), and even if I were to accept that the personal respondent did not receive the Notice of Hearing that was sent as a courtesy to his address that he provided on the incomplete Response, the personal respondent failed to notify the Tribunal of an address change as he was required to do under Rule 1.13 of the Tribunal’s Rules of Procedure.

18Further, it would be unreasonable for the Tribunal to have suspected that the personal respondent had moved, and to try emailing, given that the lack of any response to the Notice of Hearing was consistent with the lack of any response to the Tribunal’s previous directions, and with the personal respondent’s failure to appear at the mediation which he had participated in scheduling. The Tribunal’s Practice Direction on Communicating with the Human Rights Tribunal of Ontario states that key documents, such as Interim Decisions, Decisions and Notices of Hearing, will be sent to parties by regular mail:

Communications from the HRTO: The Application and Response forms ask the parties and their representatives to indicate the best method of communicating with them.

As a general rule, the HRTO will send key documents to the parties by regular mail. However, if a party has indicated that email or fax communication is their preferred method of communication, the HRTO may use this means of communications for other correspondence.

19Finally, in the context of the email exchanges between the personal respondent and the staff scheduling the mediation, the personal respondent stated, “email and I do not get along.” Given this statement, and given the context of the Tribunal sending the Notice of Hearing to the mailing address on the incomplete Response which indicated that his preferred method of receiving documents is by mail, it is unreasonable for the personal respondent to imply blame on the Tribunal for sending the Notice of Hearing by mail and not email.

20I am not satisfied that the personal respondent did not receive notice of the hearing “through no fault of [his] own” as would be required under Rule 26.5(b) for me to exercise my discretion and grant a reconsideration. I therefore deny the personal respondent’s Request for Reconsideration under Rule 26.5(b).

Position that Decision conflicts with established jurisprudence or procedure

21With respect to Rule 26.5(c), I do not agree that any findings made in the Decision are in conflict with established jurisprudence or Tribunal procedure. The personal respondent has not provided any jurisprudence or cited any Tribunal procedure with which the findings made in the Decision might conflict. The Tribunal stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. While the personal respondent disagrees with the conclusions of the Tribunal, I am not satisfied that his submissions on this Request establish that the Decision conflicts with established jurisprudence or procedure.

22In sum, I find that the personal respondent has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Decision of the Tribunal. The Request is denied.