HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Althea Reyes

Applicant

-and-

Vertica Resident Services

Respondent

RECONSIDERATION DECISION

Adjudicator: Sheri D. Price

Date: July 2, 2013

Citation: 2013 HRTO 1144

Indexed as: Reyes v. Vertica Resident Services

INTRODUCTION

1On January 2, 2013, the applicant filed a Request for Reconsideration of the Tribunal’s November 26, 2012 decision in this matter, 2012 HRTO 2210. In that Decision, the Tribunal dismissed the Application as abandoned because the applicant failed to attend at a November 26, 2012 hearing in respect of the Application.

BACKGROUND

2Pursuant to a Case Assessment Direction dated June 5, 2012, the Tribunal directed, on its own initiative, that a summary hearing be convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed on the basis that there was no reasonable prospect that the Application would succeed. In its Case Assessment Direction, the Tribunal directed that the summary hearing would proceed by way of teleconference and advised the parties that a Notice of Summary Hearing would be sent to them by the Registrar’s office.

3The summary hearing was originally scheduled to be heard on October 11, 2012. However, on October 1, 2012, the applicant’s representative, who is also the applicant’s sister, Allison Reyes, emailed the Tribunal to request that the summary hearing be rescheduled on the stated basis that she would be away for the following three weeks due to the death of a family member. The request was copied to the respondent, in accordance with the Tribunal’s Rules. The respondent consented to the request. Accordingly, the summary hearing was rescheduled to November 26, 2012, one of the dates provided by the applicant’s representative in her rescheduling request.

4On October 4, 2012, the Tribunal sent an email to both the applicant and her representative advising that the applicant’s rescheduling request had been granted and that the summary hearing would take place on November 26, 2012, from 9:30 a.m. to 12:30 p.m.

5In addition, a revised Notice of Summary Hearing was sent to the parties on October 5, 2012, confirming that the summary hearing would commence at 9:30 a.m. on November 26, 2012, and providing the parties with details regarding how to connect to the teleconference.

6The October 5, 2012 Notice of Summary Hearing set out the consequences of failing to attend the hearing as follows:

CONSEQUENCES OF FAILING TO ATTEND THE HEARING

If you fail to attend the hearing after receiving proper notice the HRTO may:

• proceed in your absence;

• determine you are not entitled to further notice of the proceedings;

• determine you are not entitled to present evidence or make submissions to the HRTO;

• decide the Application based solely on the materials before the HRTO;

• dismiss the Application as abandoned if the applicant fails to attend, and;

• take any other action the HRTO considers appropriate.

7The Summary Hearing was convened by teleconference on November 26, 2012, at the scheduled time. The respondent attended the summary hearing and was represented by counsel. The applicant did not attend the hearing. After waiting for a half-hour to see if the applicant would attend, and after satisfying myself based on the Tribunal’s record that the applicant had received timely and proper notice of the summary hearing, I dismissed the Application as abandoned at the hearing.

8The applicant asks that the Tribunal reconsider its decision dismissing her Application as a result of her failure to attend the November 26, 2012 hearing. The applicant submits that the reason that she did not attend the November 26, 2012 hearing in respect of her Application is because she had requested that the hearing be adjourned to another date. Specifically, the applicant alleges that her representative wrote to the Tribunal and the respondent to advise that she would no longer be acting as the applicant’s representative because of a “conflict of interest” and to request that the November 26, 2012 hearing be rescheduled to allow the applicant to obtain another representative.

9The applicant seeks reconsideration of the Tribunal’s decision on the basis that she did not receive notice of the hearing through no fault of her own (Rule 26.5(b)); and on the basis that the decision is in conflict with established jurisprudence or Tribunal procedure and involves a matter of general or public importance (Rules 26.5(c)).

REQUEST FOR RECONSIDERATION

10Under 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.

11The Tribunal has issued Rules of Procedure that govern requests for reconsideration, as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers.

12Rule 26.5 of the Tribunal’s Rules of Procedure sets out the limited circumstances in which reconsideration may be granted by the Tribunal:

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.

13The 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.

14As 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. Pursuant to the governing Rules of Procedure, the Tribunal will only reconsider a decision where it is satisfied that there are compelling and extraordinary circumstances that warrant the exercise of its discretion to reconsider.

15Having carefully considered the matter, I find that the Request for Reconsideration ought to be denied. This is because the applicant has failed to establish the existence of any of the criteria in Rule 26.5 that might warrant reconsideration of the Tribunal’s decision.

16The applicant submits that the Tribunal ought to reconsider its November 2012 decision dismissing her Application pursuant to Rule 26.5(b) on the basis that the applicant did not receive notice of the proceeding or hearing through no fault of her own.

17However, it is clear that the applicant did receive notice of the November 26, 2012 hearing when the Tribunal sent an October 4, 2012 email to both the applicant and her representative confirming that the hearing would be rescheduled to November 26, 2012, and when the Tribunal sent the revised Notice of Summary Hearing to the applicant’s representative on October 5, 2012. Indeed, the summary hearing was rescheduled to November 26, 2012 at the request of the applicant.

18It is thus clear that the applicant’s failure to attend the hearing, and the consequent dismissal of her Application, were not due to the fact that the applicant did not receive notice of the hearing. On the contrary, although the applicant cites Rule 26.5(b) in her Request for Reconsideration, the applicant acknowleges that she had notice of the November 26, 2012 hearing; she simply submits that she did not attend it because she had requested that it be rescheduled. In the circumstances, there is no basis to reconsider the decision pursuant to Rule 26.5(b) of the Tribunal’s Rules of Procedure.

19Nor is there any basis to reconsider the decision pursuant to Rule 26.5(c) of the Rules of Procedure. The applicant has not identified any case law or Tribunal procedure that she submits is in conflict with the decision she wishes to have reconsidered. Nor has the applicant made any submissions with respect to the general or public importance of the proposed reconsideration.

20Although not specifically pleaded, I have also considered whether it would be appropriate to reconsider the decision dismissing the Application pursuant to Rule 26.5(d) on the basis that factors exist that outweigh the public interest in the finality of decisions. This ground for reconsideration is appropriately interpreted in the context of the Tribunal’s Practice Direction of Reconsideration, which requires that compelling and extraordinary circumstances exist to overcome the significant public interest in the finality of Tribunal decisions. Goodridge v. Toronto Police Services Board, 2011 HRTO 2208 at para. 39.

21Having carefully considered the matter, I find that the applicant has not provided a reasonable explanation for her failure to appear at the November 26, 2012 hearing and has therefore not demonstrated that compelling or extraordinary circumstances exist that outweigh the public interest in the finality of Tribunal decisions.

22The Tribunal dismissed the Application in this case as abandoned on November 26, 2012, because of the applicant’s failure to attend the hearing. The entirety of the applicant’s submissions in support of her Request for Reconsideration are as follows:

I did not abandon my case. I would never abandon my case. My agent sent an email to both the Tribunal and the Respondent requesting a delay because of a conflict of interest. I was told that the matter would be adjourned.

23Although the applicant’s sister and former representative, Allison Reyes, and the applicant, take the position that Allison Reyes sent a letter or email requesting that the November 26, 2012 summary hearing be rescheduled, the Tribunal never received any such request. Counsel for the respondent, who was allegedly copied on the request, has also advised the Tribunal that she never received a copy of any request that the November 26, 2012 summary hearing be rescheduled. Moreover, although the applicant was advised before she filed her Request for Reconsideration that neither the Tribunal nor the respondent had received the rescheduling request that was allegedly sent, she has not provided a copy of the rescheduling request. Nor has she provided any details about the rescheduling request, such as the date on which it was allegedly sent, where it was sent, etc. In the circumstances, I am not satisfied that the applicant’s former representative did in fact request that the November 26, 2012 summary hearing be rescheduled.

24In any event, even if the applicant’s former representative did request an adjournment of the November 26, 2012 summary hearing, or if the applicant believed that she did, in my view, that is not a reasonable explanation for the applicant’s failure to attend the November 26, 2012 hearing.

25The applicant contends that her representative requested that the November 26, 2012 hearing be rescheduled. However, there is no suggestion that the Tribunal granted her request or otherwise responded to it (which it did not, since no request was received). In the absence of any response to her purported request for an adjournment, the applicant ought to have proceeded on the basis that the hearing would be going ahead as scheduled. It was not reasonable for the applicant to simply assume that the hearing had been or was going to be rescheduled, and to fail to attend based on her assumption. This is particularly so given the applicant’s familiarity with the Tribunal’s practice of granting adjournments in writing, based on what transpired with her October 2012 rescheduling request.

26Nor is the applicant’s vague representation that she “was told” that the matter “would be” adjourned a satisfactory explanation of her failure to attend the November 26, 2012 hearing. The applicant has provided no particulars with respect to this allegation. For example, she has not indicated who allegedly told her that the hearing would not be proceeding as scheduled or when. This is insufficient to justify the applicant’s failure to attend the November 26, 2012 hearing.

27For the above reasons, I find that the applicant has not provided a reasonable explanation for her failure to attend the November 26, 2012 summary hearing in respect of her Application.

28The Notice of Summary Hearing specifically advised the applicant that her Application could be dismissed as abandoned if she failed to attend the November 26, 2012 summary hearing. In the absence of any reasonable explanation for the applicant’s failure to attend the November 26, 2012 hearing, I am not satisified that the Tribunal ought to exercise its discretion to reconsider its decision dismissing the Application as a result of the applicant’s non-attendance at the hearing. The thrust of the applicant’s submission is that, despite having received proper advance notice of the November 26, 2012 summary hearing, she chose not to attend because she believed or assumed that her (purported) rescheduling request would be granted by the Tribunal. These are not compelling and extraordinary circumstances that outweigh the public interest in the finality of Tribunal decisions. My conclusion in this regard is consistent with Goodridge, above; Szabo v. York University, 2013 HRTO 746; Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1868; Mathurin v. University of Toronto, 2012 HRTO 1102.

29In sum, the applicant has not satisfied the Tribunal that there are compelling and extraordinary circumstances that justify reconsideration of the Tribunal’s November 26, 2012 decision in this matter. The Request for Reconsideration is denied accordingly.