Williams v. Toronto Transit Commission, 2013 HRTO 1196

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donald Williams Applicant

-and-

Toronto Transit Commission, Lori MacGregor and Nick Valente Respondents

-and-

Amalgamated Transit Union, Local 113 Intervenor

RECONSIDERATION DECISION

Adjudicator: Jo-Anne Pickel Date: July 9, 2013 Citation: 2013 HRTO 1196 Indexed as: Williams v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Donald Williams, Applicant Self-represented

Toronto Transit Commission, Lori MacGregor and Nick Valente, Respondents Lucy Siraco, Counsel

Amalgamated Transit Union, Local 113, Intervenor Dean Ardron, Counsel

Introduction

1The applicant requests Reconsideration of the Tribunal’s May 22, 2013 Decision, 2013 HRTO 881, dismissing his Application as abandoned when he failed to take part in the teleconference hearing scheduled that same day.

2The circumstances in which reconsideration may be granted are set out in Rule 26.5 of the Tribunal’s Rules of Procedure (“Rules”):

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.

Factual Background

3On December 7, 2012, the Tribunal issued a Notice of Confirmation of Hearing (“Notice”) to the parties confirming that a hearing would take place by teleconference on May 22, 2013 at 9:30 a.m. The hearing was scheduled to deal with the respondent’s request that the Tribunal dismiss or strike out parts of the Application because it is based on confidential and/or improperly obtained information. The Notice set out the telephone number that the parties were required to call in order to take part in the teleconference hearing.

4Late in the evening before hearing, the applicant sent an e-mail to the Tribunal and all parties advising that he was withdrawing a conflict of interest allegation he had made against the intervenor’s counsel. This conflict of interest allegation was scheduled to be heard in the hearing the following day along with the respondent’s request to dismiss or strike out parts of the Application.

5When the applicant had not joined the teleconference hearing by 10 a.m. on May 22, 2013, the Tribunal followed its usual practice of seeking submissions from the other parties. Based on these submissions, the Tribunal orally dismissed the Application as abandoned. This decision was confirmed in a written decision issued that same day.

6At 10:22 a.m., after the Tribunal had orally dismissed the Application, the applicant e-mailed the Tribunal and the other parties stating that he had not heard from anyone as to why he had not received a call. He advised that he would carry on with his day and looked forward to a new hearing date.

7At 11:01 a.m., the applicant sent another e-mail in which he advised that he had inadvertently misread the Notice.

8The applicant filed a Request for Reconsideration (“Request”) on May 31, 2013. In the Request, he stated that he had missed the hearing because he misread the Notice. He submitted that he had demonstrated that he intended to take part in the hearing by sending an e-mail to the Tribunal and the other parties the night before the hearing and through his e-mails the morning of the hearing. The applicant submitted that he would be denied his “day in court” if reconsideration were not granted.

9The respondents opposed the applicant’s Request. The respondents submitted that the reasons given for the Request did not meet any of the circumstances set out in Rule 26.5 of the Tribunal’s Rules. According to the respondents, the applicant should be held to a higher standard since he is a paralegal. They argued that the applicant should have known the importance of reading the Notice carefully. The respondents noted that the applicant waited almost a full hour before contacting the Tribunal. The respondents submitted that, if the applicant were truly interested in taking part in the hearing, he would have contacted the Tribunal by telephone shortly after the start time for the hearing. Finally, the respondents asserted that they would be prejudiced if reconsideration is granted as they have an interest in relying upon the finality of the Tribunal’s decision. They also state that they would have to invest additional time and costs if the Application is reinstated.

10The intervenor took no position with respect to the reconsideration Request.

Analysis

11The only conditions listed in Rule 26.5 that could possibly apply in this case are the following:

(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

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

12I find that the circumstances of this case do not support granting reconsideration under the condition set out in Rule 26.5(b). There is no doubt that the applicant received notice of the teleconference hearing and it was his own mistake, not lack of notice that caused him to miss the hearing.

13The Tribunal has held that in some cases, a mistake similar to the one in this case might support reconsideration under Rule 26.5 (d). See Ade-Ajayi v. Peel Access to Housing and Region of Peel, 2012 HRTO 613. In my view, an applicant’s misreading of a Notice of Hearing will only in very rare circumstances support reconsideration under Rule 26.5 (d). The Tribunal has reiterated many times that, by filing an Application with the Tribunal, parties are commencing legal proceedings. By doing so, parties have an obligation to exercise due diligence in reading Tribunal correspondence.

14In this case, there are factors that weigh both for and against granting the applicant’s Request. One would expect that, as a paralegal, the applicant would have understood the importance of reading the Tribunal’s Notice carefully. One would also expect that the applicant would be familiar with the customary way of participating in teleconferences by calling in to the telephone number provided for the teleconference. On the other hand, the applicant’s e-mail sent the night before the hearing and his e-mails shortly after the hearing concluded do indicate an intention to pursue the Application.

15I agree with the respondents that parties have an interest in being able to rely upon the finality of the Tribunal’s decisions. However, this is always subject to an applicant’s right to seek reconsideration in accordance with the Tribunal’s Rules. I recognize that the respondents incurred time and cost by attending the initial hearing which in the end did not take place due to the applicant’s oversight. However, in my view, any prejudice relating to the required preparation for a reconvened hearing is relatively minimal in the circumstances.

16Taking all the above factors into account, I find that, on balance, it is appropriate to grant reconsideration in the special circumstances of this case.

ORDER

17The Tribunal orders as follows:

a. The applicant’s Request for Reconsideration is granted.

b. The Registrar shall schedule a half day hearing by teleconference to hear oral submissions with respect to the respondents’ request to dismiss or strike parts of the Application on the basis that it is founded upon confidential and improperly obtained information. The applicant should be prepared to provide oral evidence at the teleconference hearing as to how he obtained the information relied upon in his Application. All parties should be prepared to make submissions with respect to the respondents’ request to dismiss/strike.