HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Regan Rivers

Applicant

-and-

Vale Limited and Dan Pelland

Respondents

RECONSIDERATION DECISION

Adjudicator: Sheri D. Price

Date: June 18, 2013

Citation: 2013 HRTO 1087

Indexed as: Rivers v. Vale Limited

INTRODUCTION

[1] The applicant seeks reconsideration of the Tribunal’s November 22, 2012 Decision which dismissed his Application as abandoned: [2012 HRTO 2188](https://www.minicounsel.ca/hrto/2012/2188). The Request for Reconsideration is filed pursuant to s. 45.7(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

[2] Rule 26.5 of the Tribunal’s Rules of Procedure states that 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.

[3] The Tribunal deemed the applicant to have abandoned his Application because of his failure to comply with an August 24, 2012 order of the Tribunal requiring him to provide particulars of the allegations in his Application to the respondent by September 10, 2012, and because of his failure to otherwise communicate with the Tribunal.

[4] In his Request for Reconsideration, the applicant suggests that the reason he did not comply with the Tribunal’s order is that the union representative who was representing him in respect of the Application did not copy him on any of the correspondence from the Tribunal, nor did the representative comply with the Tribunal’s August 24, 2012 order on the applicant’s behalf. The applicant requests reconsideration of the Tribunal’s November 22, 2012 decision dismissing his Application pursuant to Rule 26.5(d), above.

[5] The respondents filed their submissions opposing the applicant’s Request for Reconsideration on February 6, 2013.

BACKGROUND

[6] On May 27, 2011, the applicant filed an Application under s. 34 of the Code, alleging that the respondents discriminated against him with respect to employment on the basis of disability and reprisal.

[7] On December 7, 2011, at the same time that they filed an “initial” Response to the Application, the respondents filed a Request for an Order during Proceedings (“RFOP”), seeking particulars of the applicant’s allegations against them. In their RFOP, the respondents took the position that they required particulars of the applicant’s allegations in order to know the case they had to meet and to respond to the allegations against them. The applicant did not file a response to the respondents’ RFOP seeking an Order for particulars.

[8] The Tribunal decided the respondent’s RFOP in an Interim Decision dated August 24, 2012: [2012 HRTO 1623](https://www.minicounsel.ca/hrto/2012/1623). In that decision, the Tribunal found that the Application was framed in very general terms and that it was difficult to discern what particular circumstances formed the basis of the applicant’s allegations of workplace discrimination, harassment and reprisal:

Specifically, the applicant does not set out the facts that form the substance of his allegations including the circumstances of what happened, where and when it happened and the names of the persons or organizations alleged to have violated his rights under the Code (or have been involved in the particular incidents). Further, the applicant has checked off boxes in the Form 1-A but does not include a description of how, when and by whom he was discriminated against in the boxes selected in the attached narrative.

[9] In its August 24, 2012 Interim Decision, and pursuant to Rule 6.2 of the Tribunal’s Rules of Procedure, the Tribunal ordered the applicant to provide particulars of his allegations to the respondents by September 10, 2012.

[10] When a party is represented, the Tribunal typically communicates only with the representative and does not copy the party on correspondence or Interim Decisions. In this case, the applicant had indicated that he was represented by a union representative, Chad McLeod. Accordingly, and in keeping with its general approach, the applicant’s copy of the August 24, 2012 Interim Decision was sent to Mr. McLeod and not to the applicant directly.

[11] The applicant did not comply with the Tribunal’s August 24, 2012 Order.

[12] Accordingly, on September 13, 2012, the respondents filed a further RFOP requesting that the Application be dismissed as a result of the applicant’s failure to comply with the Tribunal’s August 24, 2012 Order. In particular, the respondents asked the Tribunal to dismiss the Application as an abuse of process pursuant to its power under s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, and Rule 1.7(v.1) of the Tribunal’s Rules of Procedure.

[13] On November 22, 2012, I concluded that the applicant had abandoned his Application and dismissed it accordingly. The reasons for this conclusion were set out at paras. 7- 8 of the November 22, 2012 decision:

It is now more than two months past the applicant’s deadline for complying with the Tribunal’s August 2012 Order and the applicant has not provided the respondents or the Tribunal with the particulars that he was ordered to provide; or otherwise communicated with the Tribunal. Nor has the applicant responded to the respondent’s Request that his Application be dismissed on account of his failure to comply with the Tribunal’s August 2012 Order.

In the circumstances, it appears that the applicant has abandoned the Application. Accordingly, the Application is dismissed as abandoned. [emphasis added]

[14] As it turns out, although I was not aware of it at the time, the applicant had in fact responded to the respondent’s September 13, 2012 Request that the Application be dismissed on account of the applicant’s failure to comply with the Tribunal’s August 2012 order.

[15] On September 13, 2012, the applicant’s representative sent the respondents and the Tribunal an email responding to the Request to Dismiss. In that email, the applicant’s representative indicated a willingness to provide the particulars that the respondents were seeking; however, he sought a detailed breakdown of what was being sought before providing the requested information. The applicant took the position that the respondents had agreed to provide such a breakdown in July 2012 when the parties attended mediation:

There has been no intended abuse by the Applicant or effected (sic) party, we were not forwarded all necessary information specifically the detailed breakdown required to respond to said request. All we ask is that the respondent forward a clear and concise breakdown required by them as per the agreed arrangement made at mediation. We will then move to forward all required details.

[16] Unfortunately, as noted above, the applicant’s September 13, 2012 email was not before me when I rendered my November 22, 2012 decision dismissing the Application as abandoned.

[17] The respondents, however, did receive the applicant’s representative’s September 13, 2012 email and responded to it on September 18, 2012. In their September 18, 2012 response, among other things, the respondents took the position that the applicant did not require and was not entitled to further clarification as to the particulars he was required to produce because the respondents had already clearly identified the 21 items in respect of which they sought particulars in their December 2011 RFOP.

[18] The respondents’ September 18, 2012 response to the applicant’s representative’s September 13, 2012 email was sent to the Tribunal. However, it was not before me either when I rendered the November 22, 2012 decision dismissing the Application as abandoned.

ANALYSIS AND DECISION

Whether there is a valid request for reconsideration

[20] The first issue to be determined is whether there is a valid Request for Reconsideration in this case. The respondents submit that there is not.

[21] Specifically, the respondents point out that, pursuant to s. 45.7 of the Code, only a “party” to the Application can request that a decision be reconsidered. The respondents point out that the December 2012 Request for Reconsideration was not filed by the applicant, but rather by Mr. Bertrand, the President of the applicant’s trade union. Moreover, the respondents dispute that the Request was filed on behalf of the applicant. Insofar as the Request was not filed by or on behalf of the applicant, a “party” to the Application, the respondents submit that there is no valid Request for Reconsideration before the Tribunal and that the Tribunal has no jurisdiction to reconsider its November 22, 2012 decision dismissing the Application as abandoned.

[22] In support of their argument that there is no Request for Reconsideration from the applicant, the respondents point out that the Request for Reconsideration form was not signed by the applicant. In addition, the respondents rely on the fact that, in his December 12, 2012 letter that accompanied the Request for Reconsideration, Mr. Bertrand states, “USW Local 6500’s involvement at this point is not to act on his behalf at this juncture but to advise him as to what steps he should take if he wishes to continue to pursue this matter.” The respondents submit that this statement by Mr. Bertrand is tantamount to an acknowledgment that the trade union was not acting on behalf of the applicant when it filed the Request for Reconsideration.

[23] I cannot agree with the respondents’ argument that there is no valid Request for Reconsideration in this matter.

[24] First of all, I do not read Mr. Bertrand’s letter as saying that the union is not acting on the applicant’s behalf in submitting the Request for Reconsideration. On the contrary, in his December 12, 2012 letter, Mr. Bertrand clearly indicates that he is writing “on behalf of” the applicant to request reconsideration of the November 2012 decision dismissing his human rights Application. Moreover, on the face of the Request for Reconsideration, Mr. Bertrand clearly indicated that he was “acting for” and filing the Request “on behalf of” the applicant. I would add that, as a union representative, and pursuant to the “Tribunal’s Policy on Representation before the HRTO”, Mr. Bertrand falls within the class of unlicensed persons entitled to act as the applicant’s representative with respect to this matter, including by filing a Request for Reconsideration.

[25] As for the above-noted reference in Mr. Bertrand’s December 2012 letter to “not act[ing] on [the applicant’s] behalf”, as I read the letter, Mr. Bertrand, as the applicant’s union representative, is clearly requesting reconsideration of the November 2012 decision on the applicant’s behalf; however, the union has not agreed to represent the applicant at subsequent stages of the proceeding, in the event that reconsideration is granted and the Application continues in the Tribunal’s process. The fact that the union may not represent the applicant at other stages of this proceeding does not render the reconsideration request filed by the union representative on the applicant’s behalf invalid.

[26] Finally, I would add that I would have to adopt a very technical approach indeed to find that there is no valid Request for Reconsideration before the Tribunal. In my view, such an approach would be inconsistent with Rule 5.1 of the Tribunal’s Rules of Procedure, which provides that a technical defect or irregularity is not a breach of these Rules.

[27] In the circumstances, I find that the Request for Reconsideration filed by Mr. Bertrand is a valid Request filed on behalf of the applicant.

[28] In any event, even if I am wrong about that, I do not agree with the respondents that the absence of a valid Request for Reconsideration by the applicant deprives the Tribunal of jurisdiction to reconsider its November 22, 2012 decision dismissing the Application as abandoned.

[29] Pursuant to Rule 26.9 of the Tribunal’s Rules of Procedure, the Tribunal may reconsider a decision on its own initiative where it considers it advisable and appropriate to do so. In this case, as discussed below, it has come to light that the Tribunal’s conclusion that the applicant had abandoned his Application was based in part on an erroneous belief that the applicant had failed to communicate with the Tribunal following its August 24, 2012 decision or to respond to the respondents’ September 13, 2012 Request to Dismiss his Application. Insofar as the November 22, 2012 decision was thus based partly on an error of the Tribunal, even if there is no valid Request for Reconsideration from the applicant, this is a case in which I would find it advisable and appropriate for the Tribunal to reconsider the November 22, 2012 decision on its own initiative.

Whether the decision dismissing the Application as abandoned ought to be reconsidered

[30] I am satisfied that the applicant’s Request for Reconsideration of the Tribunal’s November 22, 2012 decision dismissing his Application as abandoned ought to be granted pursuant to Rule 26.5(d) of the Tribunal’s Rules of Procedure.

[31] The Application in this case was dismissed because it was deemed to have been abandoned by the applicant. In other words, the Tribunal dismissed the Application because it concluded that the applicant did not intend to pursue it. However reasonable that conclusion may have been on the basis of the record at that time, on the basis of the applicant’s representative’s September 13, 2012 email that is now before me, it is clear that the applicant did intend to pursue his Application at the relevant time and moreover had expressly indicated that to the respondents and the Tribunal. In the circumstances, it would be fundamentally unfair to maintain the decision dismissing the Application as abandoned. Moreover, in my opinion, the importance of ensuring that the applicant is not unfairly deprived of his right to have his Application heard outweighs the public interest in the finality of Tribunal decisions, in general, and in the November 22, 2012 decision, in particular, within the meaning of Rule 26.5(d) of the Tribunal’s Rules of Procedure. My decision in this regard is consistent with Tribunal’s decisions in Trevors v. Homestead Land Holdings Limited, [2013 HRTO 827](https://www.minicounsel.ca/hrto/2013/827); Cushnie v. Toronto Police Services Board, [2013 HRTO 63](https://www.minicounsel.ca/hrto/2013/63); and Gothard v. Gallagher, [2011 HRTO 1776](https://www.minicounsel.ca/hrto/2011/1776).

[32] The respondents submit that the Tribunal ought to deny the Request for Reconsideration because the applicant’s claim that he was not copied on correspondence relating to this matter (and the implicit suggestion that the reason he did not comply with the August 24, 2012 Order is because he was unaware of it) has not been proved in evidence. The respondents further submit that the “sparse” statement that the applicant “claimed not to have been copied on correspondence relating to this matter” is an inadequate basis upon which to reconsider the November 22, 2012 decision. Among other things, the respondents submit that the mere fact that the applicant was not copied on correspondence does not mean that the applicant was unaware of the correspondence or the Tribunal’s August 24, 2012 Order requiring him to provide particulars.

[33] In my view, the respondents’ submissions on this point miss the mark somewhat. The veracity and/or sufficiency of the applicant’s claim that he was “not copied on correspondence” in this matter is not the key consideration in my decision to grant the Reconsideration Request.

[34] As noted above, the main reason for my decision to grant the Request for Reconsideration is that, contrary to my understanding at the time the November 22, 2012 decision was made, the applicant, through his representative, had communicated with the respondents and the Tribunal in a way that made it clear that the applicant was not abandoning his Application. Accordingly, my November 2012 finding that the applicant had abandoned his Application was incorrect. In my view, these are compelling and extraordinary circumstances that warrant reconsideration of the decision dismissing the application as abandoned.

[35] Accordingly, the applicant’s Request for Reconsideration of the Tribunal’s November 22, 2012 decision is granted.

Whether the Application ought to be Dismissed as an Abuse of Process

[36] As noted above, on September 13, 2012, the respondents sought to have the Application dismissed as an abuse of process. As it turned out, that Request was not determined, because I decided that the Application had been abandoned and dismissed it on that basis.

[37] In the circumstances, having granted the applicant’s Request for Reconsideration of the decision dismissing the Application as abandoned, it is appropriate to address the respondents’ Request that the Application be dismissed as an abuse of process.

[38] Having carefully considered the respondents’ submissions on this issue, I find that it would not be appropriate to dismiss the Application as an abuse of process.

[39] The respondents correctly point out that an applicant’s continuous failure to comply with directions of the Tribunal can lead to his or her Application being dismissed as an abuse of process: Felix v. Global Payments of Canada CP, [2011 HRTO 1983](https://www.minicounsel.ca/hrto/2011/1983).

[40] In this case, however, I am not persuaded that the applicant has continuously failed to comply with directions of the Tribunal, such that his Application ought to be dismissed as an abuse of process.

[41] The respondents point out that the applicant failed to respond to their December 7, 2011 RFOP requesting that the Tribunal order the applicant to provide particulars, despite having had two opportunities to do so: first, within the normal 14-day time period for responding to an RFOP; and second, when the Tribunal gave the applicant an express “extended” opportunity to respond to the RFOP in his Reply to the respondents’ Response to the Application.

[42] The respondents attempt to characterize the applicant’s failure to respond to its December 2011 RFOP and his failure to comply with the Tribunal’s August 24, 2012 Order as part and parcel of a continuous failure by the applicant to comply with his obligation to provide particulars.

[43] In my view, however, the applicant’s failure to respond to the December 7, 2011 RFOP and his failure to comply with the August 24, 2012 Order of the Tribunal are very different things. Whereas the applicant was certainly obliged to comply with the Tribunal’s August 24, 2012 Order, he was not similarly obliged to respond to the respondents’ RFOP seeking that Order. Of course, the consequence of the applicant’s failure to respond to the RFOP, in keeping with the Tribunal’s general practice with respect to such matters, was that the Tribunal decided the RFOP, on August 24, 2012, based only on the respondents’ submissions. In my view, however, it would be overreaching and inaccurate to characterize the applicant’s failure to respond to the December 2011 RFOP as the sort of failure to comply with the Tribunal’s Rules and/or directions that might lead to dismissal of the Application as an abuse of process.

[44] By contrast, a repeated failure to comply with the August 24, 2012 Order of the Tribunal is the sort of failure that could lead to dismissal of the Application as an abuse of process. In my view, however, the circumstances of this case do not justify such a measure.

[45] First, unlike the applicant in the Felix case relied upon by the respondents, the applicant in this case has not failed “on several occasions” to comply with orders and/or directions of the Tribunal. The applicant has really only failed to comply with one order of the Tribunal, namely, its August 24, 2012 Order that he provide certain particulars by September 10, 2012.

[46] Moreover, to the extent that the applicant failed to comply with that Order, primary responsibility seems to rest with the applicant’s previous representative, Mr. McLeod (who, it should be noted is neither a lawyer nor a licensed paralegal), and not the applicant himself.

[47] I come to this conclusion based on the September 13, 2012 email that Mr. McLeod sent in response to the respondents’ September 13, 2012 Request that the Application be dismissed on account of the applicant’s failure to comply with the Tribunal’s August 24, 2012 Order for particulars. I quite agree with the respondents that Mr. McLeod’s position that he was not required to comply with the Tribunal’s August 24, 2012 Order until the respondents further clarified what particulars were required was completely untenable. The Tribunal’s August 24, 2012 Order was very clear in stating that the applicant was required to provide particulars in respect of the 21 numbered items identified in the respondents’ December 2011 RFOP. Moreover, I agree with the respondents that if the applicant’s representative truly did not understand what was required of him, it was incumbent on him to seek clarification in that regard before September 10, 2012, the deadline by which the particulars were to have been provided. It is clear on the face of the record that the manner in which the applicant’s former representative approached the August 24, 2012 Order for particulars fell far short of what was required.

[48] However, I am not persuaded that this warrants dismissal of the Application as an abuse of process. In previous cases, the Tribunal has found that it may be unfair to dismiss an Application because of the neglect or inattention by a representative: Trevors, above; Cushie, above. Likewise, in the circumstances of this case, I do not feel that it would be fair to require the applicant to pay the price of his representative’s seemingly lax attitude towards the Tribunal’s August 24, 2012 Order by dismissing his Application as an abuse of process.

[49] The respondents’ Request that the Application be dismissed as an abuse of process is denied accordingly.

NEXT STEPS

[50] The applicant must comply forthwith and in any event within 21 days of the date of this decision with the Tribunal’s August 24, 2012 Order requiring him to provide particulars of his allegations to the respondents. Specifically, within 21 days of the date of this decision, the applicant must provide the respondents with particulars of the 21 numbered items listed in the respondents’ December 7, 2011 Request for an Order during Proceedings (i.e. the Request for Particulars).

[51] To be clear, the applicant is not entitled to have the respondents provide him with any further clarification as to the particulars required before complying with the Tribunal’s Order. The applicant is the one who has filed this Application alleging that the respondents infringed his rights under the Code. The applicant should therefore be in a position to particularize the allegations in his Application, which is all the respondents have sought.

[52] In the event that the applicant fails to comply with the Tribunal’s Orders, his Application may be dismissed by the Tribunal as abandoned and/or as an abuse of process.

[53] The respondents may file an amended Response to the Application, if they wish to do so, within 35 days of receiving the applicant’s particulars.

[54] The applicant may file an amended Reply to the Response, if he wishes to do so, within 14 days of receiving the amended Response.

[55] The respondents have raised concerns that they may be prejudiced in their ability to respond to the applicant’s particularized allegations, given the delay in providing them. There is nothing to preclude the respondents from pursuing this issue, if and when it arises.

ORDERS

[56] The Request for Reconsideration of the Tribunal’s November 22, 2012 decision dismissing the Application as abandoned is granted.

[57] The respondents’ Request that the Application be dismissed as an abuse of process is denied.

[58] Within 21 days of the date of this decision, the applicant is required to comply with the Tribunal’s August 24, 2012 Order by providing particulars of the 21 numbered items listed in the respondents’ Request for Particulars dated December 7, 2011.

[59] In the event that the applicant fails to comply with the Tribunal’s Orders, his Application may be dismissed by the Tribunal as abandoned and/or as an abuse of process.

[60] The respondents may file an amended Response to the Application, if they wish to do so, within 35 days of receiving the applicant’s particulars.

[61] The applicant may file an amended Reply to the Response, if he wishes to do so, within 14 days of receiving the amended Response.

[62] A copy of the Tribunal’s August 24, 2012 Interim Decision, as well as a copy of the respondents’ December 7, 2011 Request for Particulars, containing the 21 items in respect of which particulars must be provided, will be attached to this decision to facilitate compliance with the Tribunal’s Orders.

Dated at Toronto, this 18th day of June, 2013.

“Signed by”

Sheri D. Price

Vice-chair