Tom Raba v. Frank Vaccarelli and Paul McMahon, 2013 HRTO 1227

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tom Raba

Applicant

-and-

Frank Vaccarelli and Paul McMahon

Respondents

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: July 12, 2013

Citation: 2013 HRTO 1227

Indexed as: Raba v. Vaccarelli

WRITTEN SUBMISSIONS

Tom Raba, Applicant

Self-represented

Frank Vaccarelli, Respondent

Vito Vaccarelli, Representative

Paul McMahon, Respondent

No one appearing

1This is an Application filed on April 24, 2012, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Reconsideration Decision responds to a Request for Reconsideration filed by the applicant on December 15, 2012.

2By way of background, on review of the Application the Tribunal determined that it may be appropriate to defer the consideration of this Application pending the resolution of another legal proceeding at the Landlord and Tenant Board (the “LTB”), scheduled to be heard on May 2, 2012.

3In a letter dated June 17, 2012, the Tribunal sought submissions from the parties by July 17, 2012 (the “NOID”) on the issue of deferral. Neither party responded to the Tribunal’s Notice of Intention to Defer or sent in submissions on the issue of deferral.

4In a Case Assessment Direction (“CAD”) dated September 14, 2012, the applicant was directed to confirm in writing whether he intended to proceed with this Application on or before September 25, 2012, failing which, this Application may be dismissed as abandoned. The applicant did not respond in any way to these Directions and in 2012 HRTO 1870 the Application was dismissed as abandoned (the “Decision”).

5As indicated, the applicant has filed a Request for Reconsideration but provided no reasons why the Decision should be reconsidered. In a Case Assessment Direction issued on January 14, 2013, the applicant was directed to deliver and file whatever further submissions he wishes to make in support of his Request for Reconsideration including his explanation for not having responded to any of the communications above. At the same time, all parties were advised that the Registrar’s Office had previously received information from the applicant to the effect that he had moved from the address on file with the Tribunal and had not received any of the communications above. This information has not been confirmed in writing.

6In his submissions provided in response to the January 14, 2013 CAD, the applicant alleges that the respondents have interfered with his mail and as a result he did not receive any of the material communications from the Tribunal and accordingly did not know that he was required to respond to the NOID or CAD issued on September 14, 2012.

7Under 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.

8The 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 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.

9The 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.

10As 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.

11I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration. The applicant’s written submissions address none of the factors outlined in the Rule expressly, however accepting his claims at face value they are a claim under Rule 26.5(b) that through no fault of his own he did not receive notice of his obligations to engage with the Tribunal’s process and respond to the NOID and CADs.

12I am not satisfied that the applicant through no fault of his own did not receive the NOID or the CAD. As indicated earlier his first information to the Tribunal was that he had moved and not advised us of his new contact information. This advice was not confirmed in writing. When subsequently asked for his submissions in support of the Request for Reconsideration the applicant alleges that he did not receive the communications from the Tribunal because the respondents were intercepting his mail. In my view if the applicant did not receive timely notice of the Tribunal’s communications it can not be said that it was through no fault of his own as the Tribunal expects parties to keep it informed of their contact information. In all of the circumstances I find that it would not be appropriate to reconsider the Decision in these circumstances.

13In conclusion, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.