HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Senan Hodonou
Applicant
-and-
The Canadian Red Cross Society
Respondent
RECONSIDERATION DECISION
Adjudicator: Geneviève Debané
Indexed as: Hodonou v. The Canadian Red Cross Society
APPEARANCES
Senan Hodonou, Applicant
Self-represented
The Canadian Red Cross Society, Respondent
Christopher M. Wallace, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment.
2In a Case Assessment Direction dated January 20, 2013, the Tribunal directed that a summary hearing be held to determine if the Application had no reasonable prospect of success.
3The applicant did not attend the summary hearing scheduled on April 19, 2013. The same day the Tribunal issued Decision 2013 HRTO 660 (the “Decision”) dismissing the Application as abandoned.
4On May 17, 2013, the applicant filed a timely Form 20 Request to reconsider the Decision.
5In a Case Assessment Direction dated May 22, 2013, the Tribunal directed the applicant to file additional submissions and the respondent to file a Form 21, Response to the Request to reconsider.
POSITION OF THE PARTIES
6The Notice of Summary Hearing was sent to the applicant via mail on February 22, 2013 and was not returned to the Tribunal.
7The applicant alleges that she moved on February 16, 2013 and that she did not advise the Tribunal of her new address. She claims that she had a relative who resided at her old address until April 30, 2013 and that she was going to advise the Tribunal that she had moved on May 1, 2013. The applicant points out that in her Application she indicates that she prefers to receive correspondence from the Tribunal via email. The Notice of Hearing was only sent to her via mail. The applicant states that she did not receive the Notice of Hearing and that is why she did not attend the summary hearing.
8The respondent submits that the Rules are clear that it is the responsibility of the applicant to provide the Tribunal with her updated contact information and that the applicant failed to do so. Further, there is no obligation that the Tribunal communicate with the applicant via her preferred method of delivery. The Tribunal’s website states, “As a general rule, the HRTO will send key documents to the parties by regular mail.” The respondent submits that the Notice of Hearing is a key document. In conclusion, it is the respondent’s position that the applicant has not established that it was through no fault of her own that she did not receive the Notice of Hearing.
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, of which the most relevant to this Decision is Rule 26, which states:
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.
11Reconsideration 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.
12I have considered the submissions of the parties. Though I agree with the respondent that the applicant should have been more diligent in advising the Tribunal that she was moving, I am satisfied that the applicant did not receive the Notice of Hearing. I accept that the applicant believed that the relative at her former address would forward to her any mail that she received and that therefore it was not necessary for her to change her contact information.
13I accept that the applicant has established the existence of exceptional circumstances and the Request to reconsider the Decision is therefore allowed. The Decision will be set aside and the Registrar shall send another Notice of Summary Hearing. However, the applicant must in the future immediately advise if there is any change in her contact information.
ORDER
14The Tribunal Orders as follows:
a. The Request for Reconsideration is granted and the Decision is set aside;
b. The Registrar shall deliver a Notice of Summary Hearing to the parties;
c. The applicant must immediately advise the Tribunal if there is any change in her contact information; and
d. This Reconsideration Decision and the Notice of Summary Hearing shall be sent to the applicant by e-mail and by regular mail.
15I am not seized.
Dated at Toronto, this 2nd day of July, 2013.
“Signed by”
Geneviève Debané
Vice-chair