Rocha v. Pardons and Waivers Canada, 2013 HRTO 1352

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lina Rocha

Applicant

-and-

Pardons and Waivers Canada, a division of 1339835 Ontario Limited

Respondent

RECONSIDERATION DECISION

Adjudicator: Judith Keene

Date: August 8, 2013

Citation: 2013 HRTO 1352

Indexed as: Rocha v. Pardons and Waivers of Canada

WRITTEN SUBMISSIONS

Lina Rocha, Applicant

Self-represented

Pardons and Waivers Canada, a division of 1339835 Ontario Limited, Respondent

Erin Hallock, Counsel

1This is a Decision on a Request for Reconsideration filed on April 30, 2013. The respondent requested that Decisions 2012 HRTO 2234 and 2013 HRTO 537 be reconsidered. The Request was apparently delivered to the applicant on the same date. The applicant was given an opportunity to make submissions, and at her request and with the consent of the respondent, was given an extension of time to do so. In the event, the applicant sent what appears to be a response to the Request for Reconsideration, although it is on the wrong form (she used the Request Form, Form 20). The form sent by the applicant addresses the Respondent’s request only to the extent that it contains a brief note to the effect that she had proof of the allegations made in the Application.

2The respondent has requested that the two above noted Decisions be set aside and in addition has requested that the Tribunal dismiss the Application as against the respondent.

3I find that the respondent has not established that subsection (b) of Rule 26.5 applies to its situation, nor that any other part of Rule 26.5 applies. In addition, I do not find that fairness requires that the Decisions in this matter be set aside. My reasons are set out below.

BACKGROUND FACTS AND SUBMISSIONS

4On July 13, 2011, the applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in respect of employment on the basis of age.

5On October 25, 2011, the Tribunal issued a Notice of Application (“Notice”) to the respondent in which it directed the respondent that a Response to the Application must be filed with the Tribunal not later than November 29, 2011. The Application was sent with a standard Notice signed by the Registrar and dated October 25, 2011. The Notice gave information about how to obtain access to the Tribunal’s Rules of Procedure, Guides, Practice Directions and Policies in various formats, and included a one-page document headed “Important Information for the Respondent(s)”. This document indicated, among other information, that the respondent must file a completed Response in order to respond to the Application. It included the following paragraph:

If you fail to respond to the Application, the HRTO may deem you to have accepted all of the allegations in the Application, deem you to have waived all rights with respect to further notice or participation in the proceding, proceed to deal with the Application without further notice to you and decide the matter based only on the material before the HRTO.

6On November 21, 2011, the Tribunal received an unsigned letter on letterhead bearing the name of the respondent Pardons and Waivers of Canada. The letter indicated that “We have no knowledge of the person, Lina Rocha.” It further stated: “We did not place an ad on kajiji [sic] as alleged and no person under our employment did so or spoke with Lina Rocha.” The letter stated “I am redirecting this complaint file to OT Financial Consulting Corp”, although this entity was not named in the Application, the respondent failed to explain why this entity might have an interest in this proceeding, and no address or other contact information was given for “OT Financial Consulting Corp”. The letter also included an invitation to “contact this writer” if “any additional information” was required. The letterhead gave an address and the information that “Pardons and Waivers Canada is a division of 1339835 Ontario Limited”.

7The Tribunal responded to this letter on November 25, 2011 indicating that a complete Response was required, and indicating that “it remains open to the respondent to raise preliminary issues in the Response or to file a Request for an Order During Proceedings after filing the Response.

8The respondent sent one further letter dated November 29, 2011, saying that “Ms Hassen (sic) is not associated with Pardons and Waivers of Canada” and saying that it had “no intention of forwarding this recent letter of yours to OT Financial Consulting Corp.” Again this letter was unsigned.

9On March 27, 2012, the Tribunal issued a Case Assessment Direction (“CAD”) regarding the respondent’s failure to file a Response to the Application. The CAD was delivered to the respondent by courier and email.

10The CAD noted that, in the circumstances where a respondent has failed to respond to an Application, the Tribunal may deem the respondent to have accepted all of the allegations in the Application and proceed to deal with the Application without further notice to the respondent. The respondent’s attention was drawn to Rule 5.5 of the Tribunal’s Rules of Procedure (“Rules”), which reads as follows:

5.5 Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal.

11The CAD ordered the respondent to file a Response within 35 days of the date of the CAD and indicated that if a Response was not received by that date, the Tribunal would proceed without further notice to the respondent, and might take any or all of the other steps set out in Rule 5.5.

12On March 28, 2012, the Tribunal received a phone call and email request for a copy of the file from an individual who identified himself as Richard Breslin, and who indicated that he would be acting for the respondent in this matter. In his email, Mr. Breslin sought an extension of the 35 day deadline for filing a Response. The email states:

Further to my phone conversation with you this afternoon, please be advised that all correspondence pertaining to this file should be directed to me, Richard Breslin.

I am not in a position to respond to the letter from your organisation dated March 27, 2012… until I have become acquainted with the file and its content.

Pardons and Waivers Canada have no knowledge of a person known as [the applicant} or the foundation(s) of her complaint.

To better understand the complaint please forward to my attention a copy of all mammals (sic) , letters, e-mails and notes on this file.

13A copy of the file was sent by email to Mr. Breslin on April 11, 2012 by the Tribunal, along with an email that informed him that if he required an extension of the deadline in the CAD, he should send an email to the Registrar and copy the applicant.

14No further correspondence was received from the respondent or from Richard Breslin, its representative. The respondent did not file a Response.

15By Interim Decision 2012 HRTO 1490, dated July 31, 2012, the Tribunal ruled that the respondent was deemed to have waived all rights to notice or participation in the proceedings and was further deemed to have accepted all of the allegations set out in the Application. The applicant, who was unrepresented, was directed to submit within 30 days of the Interim Decision any additional materials, evidence, and written submissions she wished the Tribunal to consider in deciding this Application, and to advise the Tribunal as to whether she wished to make oral submissions via conference call before the Tribunal finally determined the Application. Despite the respondent’s deemed waiver of notice, the Tribunal sent a copy of this decision to the respondent.

16By a Decision dated November 29, 2012 (2012 HRTO 2234), the Tribunal found that the applicant had established a breach of sections 5 and 23(2) of the Code, and required the applicant to make further submissions concerning remedy. The Decision noted that, from the material submitted by the respondent, it appeared that the full corporate name of the respondent is “Pardons and Waivers Canada, a division of 1339835 Ontario Limited”. The style of cause in this matter was amended accordingly. The Decision was also sent to the respondent by both regular mail and courier.

17By a Decision dated April 13, 2013, (2013 HRTO 537), after considering the submissions of the applicant, the Tribunal issued a compensatory Order for loss of opportunity for employment, for violation of her inherent right to be free from discrimination, and for injury to her dignity.

18In its Request for Reconsideration, the respondent has made a number of assertions. The assertions relevant to the Request include the following:

• It is a corporation operating in Ontario, and its sole Director is Jesse Breslin. It has since its inception operated as a family business. In addition to its Director, the Corporation employed Richard Breslin, the father of Jesse Breslin.
• “Between in or about 2010 and up until approximately September 2012, the respondent operated its business out of [the address as given on the respondents letterhead]. This building was owned by Mr R. Breslin and space within it was rented to the respondent.”
• “When the respondent received notification of the Application, the corporation’s response to the Tribunal was delegated to Mr R. Breslin as it was within the purview of his job position as General Manager.”
• “The Respondent, through its General Manager Mr R. Breslin, at all relevant times understood that the correspondence sent to the Tribunal… was sufficient to inform the Tribunal that the Respondent was not properly named in the Application at issue. As a result, no further action was taken for a period of time.”
• “Throughout this time, neither the Respondent nor Mr R Breslin contacted or retained legal counsel regarding the Application. Throughout 2012, the Respondent and specifically its director Mr J Breslin, did not receive and was not aware of any further correspondence from the tribunal concerning the status of the Application. It is now understood that Mr R Breslin may have received such correspondence and yet failed to respond to the same on behalf of the Respondent or inform other representatives of the Respondent of the receipt of such correspondence.”
• “Also in or about 2012, the respondent experienced problems within their corporate operations when a conflict arose among its management, who were also family members as outlined above. Specifically, Mr J Breslin and Mr R Breslin were engaged in a conflict regarding both business- and family-related matters.”
• “It is asserted that Mr R Breslin’s failure to respond to the Tribunal and/or to inform Mr J Breslin or other management of the Tribunal’s correspondence and the status of the Application was related to the conflict between the parties at the relevant time.”
• “As of in or about September 2012, the respondent no longer employed or was associated with Mr R Breslin. The respondent also changed business locations because the building in which they previously operated was owned by Mr R Breslin.”
• “In or about January 2013, the Respondent received some correspondence and other documents related to the application from Mr R Breslin.The respondent delegated responding to the matter on behalf of the company to Ms S Breslin…[who] forwarded the Application materials… to a lawyer.”
• “In or about March 2013, Ms S Breslin made numerous adverts to contact the lawyer, but was unable to reach him despite repeated attempts by phone and in person at his office.”
• “In or about the beginning of April 2013, Ms S Breslin received correspondence from the Tribunal, which included a copy of Decision # 2. It was at this time that Ms S Breslin and the Respondent discovered that the Tribunal’s proceedings were complete.”
• “The Application presents allegations of discrimination as against the Respondent in relation to interactions that the Applicant had with a woman named Julie Hosson in or about July 2011. The Respondent denies that the relevant times Ms Hosson was acting on behalf of the Respondent or that she was an employee of the Respondent”
• “At the relevant time…[the respondent]… was in a contractual relationship [which involved]… a subcontracting of the services of OT Financial as an independent contractor to perform certain tasks for the Respondent’s business” …. “In or about July 2011, the Respondent understands that OT Financial was in an employment and/or contractual relationship with Julie Hosson”.

19The respondent asserts that “it did not post the job advertisement… that was referred to by [the applicant]. Nor did it instruct Ms Hosson to do so. The respondent was not aware or in control of the employment and/or hiring practices of its independent contractors, including OT Financial and or Ms Hosson.”.

ANALYSIS

20Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request it to reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, 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.

21It is useful to consider the Tribunal’s Practice Direction on Reconsideration, which states in part:

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

22The issue of the remedy requested by the respondent should be addressed at the outset. If the respondent had been successful in obtaining reconsideration, the Decisions would be set aside, but there would be no question of the Application simply being dismissed on the basis of the assertions made in the Request for Reconsideration. The appropriate remedy in this case would be another opportunity for the respondent to file a Response to the Application; the matter would then proceed, subject to the specific Order(s) made, through the Tribunal’s process.

23The respondent does not specifically cite the subsections of the Rule upon which it relies; its position seems to be based on a combination of subsections b and a above; that is, the respondent asserts, as noted above, that there are “new facts or evidence that could potentially be determinative of the case”, but apparently takes the position that these facts “could not reasonably have been obtained earlier” because it “through no fault of its own, did not receive notice of the proceeding or a hearing”. In fact, the submissions reveal no facts that are asserted or could be assumed to be new to the respondent, which apparently had knowledge of the alleged facts from the outset. Nor do the respondent’s submissions support an assertion that the facts which the respondent now wishes to bring to the Tribunal’s attention “could not reasonably have been obtained earlier”. It is more accurate to state that the respondent’s submissions are directed to subsection (b) of Rule 26.5.

24There is no question that, had the respondent responded to the Application, it would have been open to the respondent to adduce evidence through which it might have been able to establish that it had a contractual relationship with another business entity that employed the individual who dealt with the applicant in a way that has been found to infringe her rights under the Code. It would also have been possible for the respondent to adduce evidence through which it might have been able to establish that its “directing minds” had no knowledge of or influence upon the actions of the individual in question. Had the respondent responded to the Application, it would have been possible, as noted in the November 25, 2011 letter from the Registrar, to raise the need to add a party where this is relevant to issues of ultimate liability, as a preliminary issue “in the Response or to file a Request for an Order During Proceedings after filing the Response”. Given the broad definition of “employment” in the Code’s jurisprudence, as well as human rights jurisprudence relating to vicarious liability, the outcome might not have been as certain as suggested by counsel for the respondent, but these issues could certainly have been canvassed at a hearing with a full record.

25Having said the above, the fact remains that the issue here is whether “fairness, justice and expedition” demand that the respondents in this case be allowed another opportunity to file a Response. In my view, this question first requires a determination as to whether “the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing”.

26By its own admission, the respondent itself received the Notice of Application, with its “Information for Respondents” in respect of the Tribunal’s processes, its repeated instructions that a Response is required, and its warning of the possible consequences of failure to respond. The respondent states that, after receiving the Notice, it “delegated” the task of dealing with the Application “to Mr R. Breslin as General Manager”.

27The respondent asserts that, “through its General Manager Mr R. Breslin” it… understood that the correspondence sent to the Tribunal… was sufficient to inform the Tribunal that the Respondent was not properly named in the Application at issue”. I do not accept that the respondent could reasonably have “understood” this. As noted above, the correspondence involved only a bare denial of involvement in the facts alleged in the Appplication, along with an assertion that “I am redirecting this complaint file to OT Financial Consulting Corp”, without an explanation as to why this entity might have an interest in this proceeding, and without providing an address or other contact information for “OT Financial Consulting Corp”. The return correspondence from the Registrar of November 21 and 29, 2011 reiterated that a a complete Response was required, and indicated that “it remains open to the respondent to raise preliminary issues in the Response or to file a Request for an Order During Proceedings after filing the Response”.

28Clearly, the respondent’s General Manager held a responsible position in a business, and there is no information given that would indicate that he was operating under any difficulties that would affect his comprehension. I appreciate that the respondent indicates that it was not represented by counsel at this time, but that is perhaps all the more reason why it would not reasonably govern its actions based only on its own opinion of its legal responsibilities.

29The respondent claims that “throughout 2012”, the respondent’s “Director Mr J Breslin, did not receive and was not aware of any further correspondence from the tribunal concerning the status of the Application”. Apparently this is because the General Manager, to whom the respondent had delegated responsibility for dealing with the Application, “may have received such correspondence and yet failed to respond to the same on behalf of the Respondent or inform other representatives of the Respondent of the receipt of such correspondence” because of “conflict” among the management of the respondent. This is certainly unfortunate, but it is not clear that this absolves the respondent of responsibility in respect of the obligation to deal with the Application it had received in July of 2011. At the very least, it would have been reasonable for the respondent to have reviewed the state of the Application process when it ended its business relationship with its former General Manager in September 2012. Had the respondent asked for a report from the departing General Manager, or contacted the Tribunal, it would have been possible for the respondent to alert the applicant and the Tribunal of its position well before the Decision on the merits of the Application was issued on November 29, 2012.

30The respondent has indicated that its business address changed “in or about September 2012”. However, it does not deny that it received the November 29, 2012 merits decision. Even assuming that it did not receive the merits decision until “in or about January 2013” , (which is not specifically asserted), and even assuming that Ms S Breslin, the person delegated to deal with the Application in January of 2013, acted expeditiously in forwarding “the Application materials… to a lawyer”, the respondent did not contact the Tribunal until after it received the April 13, 2013 Decision granting a remedy.

31The respondent cites the Tribunal’s decision in Roepke v. Accenture Inc., 2011 HRTO 2230. The circumstances of that case were significantly different. The Tribunal’s process had reached only the stage at which an Interim Decision informed the respondents that they were deemed to have waived all rights to notice or participation in these proceedings. While the Tribunal listed absences of personal respondents from the workplace and “failure of the respondents’ mailroom to properly record delivery of couriered packages” as relevant facts, there was also an error on the part of the Tribunal which had resulted in Notice being sent to the wrong address. During the relevant period of time, counsel for the respondents had been in continuous contact with the applicant regarding a court action, and the applicant had not raised the issue of the respondents’ failure to respond to the Application. Finally, the Tribunal in Roepke noted that the applicant in her submissions had indicated that she did not intend to preclude the respondents from participating in the process.

32The respondent in this case admittedly received notice of the Application, together with considerable information about the Tribunal’s processes. It has therefore not established that subsection (b) of Rule 26.5 applies to its situation, nor that any other part of Rule 26.5 applies.

33Because the decision to reconsider or not is a discretionary one, it is open to the Tribunal, in my view, to consider whether, despite the respondent’s failure to establish the applicability of any of the considerations noted in Rule 26.5, fairness demands that a final decision be reconsidered. In this case, it is appropriate to look at the situations of both the parties.

34The applicant, who was unemployed at the relevant time, had undertaken a job skills upgrading course in “computer and customer service skills”, after a period of difficult personal circumstances that included the end of her marriage (see 2013 HRTO 537). After she was denied employment on the basis of her age, she filed an Application under the Code. She has participated in good faith and without representation in the course of a process that took almost two years. As noted above, her submissions in respect of the Request for Reconsideration were minimal, but that is not surprising in the light of the fact that she is unrepresented. She clearly opposes the Request, and in my view, it would be very difficult for her to have to start again in the Tribunal’s process, even with an expedited approach by the Tribunal.

35The respondent asserts that it would be able to establish facts that might place responsibility for a breach of the Code on an organization that performed “certain tasks for the Respondent’s business”, rather than upon itself. As noted above, the assertions made in the submissions do not indicate with any certainty that this would have been the case had the respondent participated in a hearing. Further, the respondent presumably has a cause of action against its former General Manager for loss occasioned by any misfeasance or malfeasance in the course of his employment. It is not clear to me in these circumstances that fairness demands that employment misconduct by the respondent’s General Manager should be dealt with through the Tribunal’s process, and at the applicant’s expense in terms of her time and resources.

36As noted above, the respondent admittedly received notice of the Application, together with considerable information about the Tribunal’s processes. Over a period of twenty-one months, it also received correspondence from the Registrar, a Case Assessment Direction, one Interim Decision and two final Decisions. It appears from the submissions that the respondent may in fact have simply waited until the last Decision, the Decision on remedy, was issued before deciding to treat the Application sufficiently seriously as to respond.

37In all of the circumstances, I do not think that fairness requires that the Decisions in this matter be set aside.

DECISION

38The Request for Reconsideration is dismissed.