Mancebo-Munoz v. NCO Financial Services Inc., 2013 HRTO 1387

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Esther del Carmen Mancebo-Munoz

Applicant

-and-

NCO Financial Services Inc.

Respondent

RECONSIDERATION DECISION

Adjudicator: Jo-Anne Pickel

Date: August 13, 2013

Citation: 2013 HRTO 1387

Indexed as: Mancebo-Munoz v. NCO Financial Services Inc.

WRITTEN SUBMISSIONS

Esther del Carmen Mancebo-Munoz, Applicant

Self-represented

1The applicant seeks reconsideration of the Decision, 2013 HRTO 1039, dismissing her Application due to her non-compliance with the Tribunal’s directions.

2For the reasons set out below, I find that the applicant has not established the existence of any of the criteria in Rule 26.5 of the Tribunals Rules of Procedure (“Rules”) that would cause me to reconsider my Decision.

The Decision being challenged

3The history of this matter is set out in several Interim Decisions: 2013 HRTO 535; 2013 HRTO 862; 2013 HRTO 919; 2013 HRTO 974; 2013 HRTO 1007.

4As I noted in the Decision dismissing her Application, I granted the applicant’s request for an adjournment made the Friday before the Monday on which her hearing was scheduled to take place. However, I attached two conditions to this adjournment in order to ensure fairness and minimize any prejudice to the respondent that would be caused by the very late adjournment of the hearing. I directed the applicant to make the disclosure that was considerably overdue and should have been filed two months earlier. I also directed the applicant to advise the Tribunal and the respondent of the name and contact information of the legal counsel she claimed to have retained. Her claim to have retained legal counsel was one of the key factors as to why I granted her an adjournment.

5I re-iterated these two conditions in Interim Decision 2013 HRTO 919 and specifically advised that the applicant that the Application might be dismissed if she did not comply with the two conditions. She never did comply with the conditions attached to the adjournment of her hearing.

Applicable Principles

6The circumstances in which a Request for Reconsideration may be granted are set out in Rule 26.5 of the Tribunal’s 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.

THE REQUEST FOR RECONSIDERATION

7The applicant seeks reconsideration under paragraphs (a), (c), and (d) of Rule 26.5. In her Request for Reconsideration, the applicant repeats much of the information contained in her Application against the respondent. None of this information is relevant to the issue of whether reconsideration should be granted. I focus below on the information contained in the Request for Reconsideration that relates to the factors set out in Rule 26.5.

Rule 26.5 (a) – Alleged New Evidence

8The applicant claims that there is new evidence that favours granting reconsideration in this case. The new evidence she refers to is a medical note from her psychiatrist dated June 26, 2013. While this note was written after the Decision dismissing her Application, the note does not provide any new evidence. The note merely confirms the opinion expressed by her family doctor in a note produced prior to the Decision.

9In the circumstances, I am not convinced that the applicant has provided any new evidence that would justify reconsidering my Decision.

Rule 26.5 (c) – Conflict with Established Jurisprudence

10The Tribunal may grant reconsideration if it is persuaded that a Decision conflicts with established jurisprudence relating to the issues raised in the Decision. In this case, the issue was the applicant’s non-compliance with the Tribunal’s directions. In her Request for Reconsideration, the applicant appears to submit that the Decision is in conflict with established jurisprudence on abuse of process and the responsibility of employers with respect to workplace health and safety. The case law relating to an employer’s obligations relating to health and safety is not relevant for the purposes of a request for reconsideration. While the respondent has argued in the past that the Application should be dismissed as an abuse of process, the reason why the Application was dismissed was the applicant’s repeated failure to follow the Tribunal’s directions.

11The Tribunal has consistently noted that, in filing applications with the Tribunal, applicants are commencing legal proceedings. The Tribunal has repeatedly found that applicants risk a dismissal of their application if they fail to follow the Tribunal’s directions. See, for example, Ouwroulis v. New Locomotion, 2009 HRTO 335 and Johnson v. Quality Home Services, 2013 HRTO 231.

12For these reasons, I am not convinced that the applicant has established that the Decision was in conflict with the Tribunal’s established jurisprudence.

Rule 26.5 (d) – Other factors

13Although the Applicant checked this box on the Request for Reconsideration form, she has not pointed to any other factors that would justify reconsidering my Decision.

14The applicant has consistently taken the position that her health condition prevented her from dealing with the legal proceeding she had begun before the Tribunal. The medical notes from her physicians indicate that it is their opinion that she is incapable of coping with the stress of legal proceedings. In this case, I had already adjourned the hearing. The applicant simply had to comply with the two conditions attached to the adjournment of her hearing. While she claimed to be incapable of doing so, she was capable of filing numerous letters with the Tribunal responding and objecting to correspondence sent by the respondent. She always did so promptly and without delay.

15While I have considerable sympathy for the challenges the applicant may be facing, in the circumstances, I am not persuaded that it is appropriate to reconsider my decision to dismiss her Application for failure to comply with the Tribunal’s directions.