Reid v. Marriott Hotels of Canada Ltd., 2013 HRTO 1500

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Reid

Applicant

-and-

Marriott Hotels of Canada Ltd.

Respondent

RECONSIDERATION DECISION

Adjudicator: Naomi Overend

Date: September 5, 2013

Citation: 2013 HRTO 1500

Indexed as: Reid v. Marriott Hotels of Canada Ltd.

APPEARANCES

Richard Reid, Applicant

Self-represented

Marriott Hotels of Canada Ltd., Respondent

Jonathan Dye, Counsel

Introduction

1In a Decision dated January 17, 2012, the Tribunal dismissed Richard Reid’s Application against his former employer, Marriott Hotels of Canada Ltd. on the basis of delay, pursuant to s. 34(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant requested the Tribunal reconsider that Decision, and the respondent was asked to make submissions on that request, which it did. Upon receipt of these submissions, the Tribunal directed that a preliminary hearing take place, at which the parties could lead evidence on the issues raised in the Request for Reconsideration. The applicant was directed to prepare an affidavit in advance of that hearing.

3On May 30, 2012, the parties attended an in-person hearing. The applicant did not appear to understand the purpose of this hearing (nor did he prepare the affidavit as directed) and so a more detailed Case Assessment Direction, dated June 1, 2012, was prepared after the hearing.

4The applicant, as directed, submitted an affidavit on July 4, 2012 with the assistance of the Human Rights Legal Support Centre. The respondent did not cross-examine the applicant on the affidavit, but instead made further submissions on the Reconsideration Request in response. I am now in a position to decide this Reconsideration Request.

THE REQUEST FOR RECONSIDERATION

5The applicant asked the Tribunal to reconsider its Decision on the basis that he had provided his then representative with the necessary information well in advance of the one-year limitation period, and was unaware that she had filed his Application late. He further alleges in his Request for Reconsideration that he was not aware that delay was an issue until after the Decision dismissing his Application.

DECISION

The Legal Test

6Under 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.

7The Tribunal has issued Rules of Procedure, which govern 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 March 2010). Rule 26 states in part:

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.

8The 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.

9As 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.

The Facts

10The applicant was fired from his job, on or about June 30, 2009. He filed a claim for termination pay under the Employment Standards Act, 2000 S.O. 2000, c.41, (“ESA”) and after that decision was issued, made a determination with his then representative to file a human rights claim. At the time, the applicant was represented by Denise Boyce, a paralegal. He asserts that the ESA decision was made in late April or early May 2010. His Application was received by the Tribunal on November 12, 2010.

11Upon receipt of the Application, the respondent immediately raised the issue of delay, both in its Response and in a Request for an Order During Proceedings, dated April 5, 2011. The applicant’s representative filed a Response to the Request on April 21, 2011, which states that the applicant had first attempted to file his Application (albeit unsuccessfully) on June 5, 2010 (i.e., within the one-year time limit).

12The Tribunal issued a Case Assessment Direction on May 10, 2011 directing the applicant to provide further submissions on the issue of delay, which Ms. Boyce did on May 23, 2011. The Tribunal did not issue a decision immediately, but rather proceeded to mediation.

13After the mediation, Ms. Boyce, on behalf of the applicant, filed a Request for an Order, which was dismissed in an Interim Decision dated November 22, 2011. Ms. Boyce filed further submissions on the issue of delay on December 13, 2011. She also filed a further Request for an Order During Proceedings asking to amend the Application to include later allegations.

14As noted above, the Decision was released on January 17, 2012. In that Decision, Vice-chair Liang:

• Specifically rejected the applicant’s submission that his representative attempted to file an Application on his behalf on June 5, 2010;
• Found that an attempt to file a Form 1A was made on July 10, 2010, outside the one-year time frame;
• Found that the delay was not incurred in good faith, and that even when the Form 1A was returned to the applicant’s representative, the correct Application Form was not submitted for another four months; and
• Denied the applicant’s request to amend his Application, saying that the new allegations were not incidents of discrimination and could not make this Application timely.

15The Request for Reconsideration was filed by a different representative for the applicant, Harry Kopyto. In this Request, Mr. Kopyto asserts the following:

• The applicant provided his material and instructions to Ms. Boyce in a timely fashion, and so it was her inaction that led to the late filing of his Application; and
• The applicant was not aware that delay was an issue until the Decision dismissing his Application for delay was released and provided to him in February 2012.

16As noted above, the Tribunal ordered that there be a hearing, at which time the applicant could provide evidence with respect to the above issues raised by Mr. Kopyto on his behalf. The applicant was to have submitted an affidavit in advance of this hearing, which he did not do. At the hearing, Mr. Kopyto was no longer the applicant’s representative.

17The affidavit that the applicant eventually submitted (with the assistance of the Human Rights Legal Support Centre) addresses the first issue raised by Mr. Kopyto (i.e., Ms. Boyce was responsible for the late submission of his Application, not him), but does not address the second issue. That is, the applicant does not repeat Mr. Kopyto’s assertion that he was not aware that delay was an issue until he was given a copy of the Decision dismissing his Application on the basis of delay.

18As the respondent pointed out, there is evidence that would suggest that the applicant was told delay was an issue well in advance of Vice-chair Liang’s Decision. His Reply (Form 3), which was submitted on April 13, 2011, specifically addresses the issue of delay. As noted by the respondent, the applicant’s signature is on the Schedule “A” to his Reply.

Analysis

19Where counsel (or other representative) is responsible for the delay in filing an Application, this may constitute a good faith explanation as set out in s. 34(2) of the Code: See Patterson v. Mississauga (City), 2012 HRTO 598. The appropriate time to raise this issue, however, is at the time the issue of dismissal for delay is being first addressed by the Tribunal, not on reconsideration. As noted above, reconsideration is not an opportunity to repair deficiencies in the original presentation of one’s case.

20The Tribunal’s Rules acknowledge that sometimes, through no fault of their own, parties do not have proper notice of a proceeding. This is alluded to in the Request for Reconsideration filed on the applicant’s behalf by his second representative, Mr. Kopyto. That is, the assertion made in this Reconsideration Request is that the applicant was kept in a state of ignorance about the delay issue by his first representative, Ms. Boyce.

21However, when given two opportunities, at the request and direction of the Tribunal, to file material in support of that bald assertion, the applicant’s affidavit is silent on the issue of how much he was told by his representative about the respondent’s Request to dismiss on the basis of delay. Moreover, the applicant’s Reply suggests the opposite – that he was aware that this was an issue. I would note that this Reply, which is signed by the Applicant, makes no reference to the arguments he is now raising about the reasons for delay.

order

22I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration as specified in Rule 26. The Request for Reconsideration is, therefore, denied.