McKenna v. Local Heroes Stittsville, 2013 HRTO 1511

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ashley McKenna Applicant

-and-

Local Heroes Stittsville and Shane Chartrand Respondents

RECONSIDERATION DECISION

Adjudicator: Paul Aterman Date: September 9, 2013 Citation: 2013 HRTO 1511 Indexed as: McKenna v. Local Heroes Stittsville

WRITTEN SUBMISSIONS

Ashley McKenna, Applicant Debbie Lucas, Representative

Local Heroes Stittsville, Respondent No one appearing

Shane Chartrand, Respondent Athena Basta, Counsel

Introduction

1This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of sex. It was heard on June 18, 2013. The applicant participated in the hearing but the respondents did not. I issued a Decision on June 25, finding that the respondents had discriminated against the applicant. I determined that the respondents were jointly and severally liable for damages.

2The personal respondent has filed a Request for Reconsideration. He claims that, through no fault of his own, he was not given notice of the hearing. He also claims that there are new facts and evidence that the Tribunal should consider.

3Having considered the parties' positions on this Request, I exercise my discretion to deny the Request. I find that the personal respondent has not shown that the failure to receive notice was through no fault of his own. I also find that the facts and evidence which the personal respondent points to are facts that he could have presented at the hearing had he participated in the process. As such, they are not facts that could not reasonably have been obtained and presented to the Tribunal at the time of the hearing. The reasoning behind these conclusions is explained below.

The Test for Reconsideration

4Section 45.7 of the Code provides the Tribunal with authority to reconsider its decisions. Rule 26.5 of the Tribunal's Rules of Procedure provides that 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;

(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;

(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 and orders.

5The Tribunal's Practice Direction on Reconsideration states the following:

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.

6The discretionary nature of the reconsideration remedy necessarily leads the Tribunal to examine the conduct of the parties in relation to the grounds that are invoked for reconsideration. Where a party seeks reconsideration because it has not received notice through no fault of its own, then – as the language of the Rules suggests – it is not sufficient that the party simply demonstrate that it did not receive notice, it must also show that it should not be faulted for the failure.

7Where a party bases its reconsideration request on the discovery of new evidence, the Code requires not only that there be new facts or evidence that could potentially be determinative of the case, but also that the requesting party could not reasonably have obtained them earlier (see Chao v. Mon Sheong Home for the Aged, 2010 HRTO 1583 at para. 8).

The Issues Raised by this Request

Did the personal respondent fail to receive notice of the hearing through no fault of his own?

8My reasons for decision addressed the failure of both respondents to appear at the hearing. This is what they say:

Throughout these proceedings the only address either party provided for the personal respondent was the mailing address of the corporate respondent. When the respondents filed their Response, the respondents' representative confirmed it was filed on behalf of both respondents and that she was representing them both. The applicant's June 5, 2012 Statement of Delivery of her Reply indicates that she provided the Reply to both respondents by hand, as well as by fax and mail to the corporate respondent and by mail to the respondents' representative.

On July 27, 2012 the respondents' representative advised that she was no longer acting as their representative. She indicated that Markus Kosmos was now the respondents' representative. She indicated his address for service as Local Heroes, 15 Robertson Road, Bells Corners, Ontario, K2H 5Y7. At the hearing the applicant identified Mr. Kosmos as the owner, or one of the owners, of the corporate respondent, as well as being the owner, or one of the owners, of the Local Heroes bar in Bells Corners. That bar is still in operation.

The Tribunal provided notice of the hearing to the respondents, care of Mr. Kosmos, at the Bells Corners address. There is no indication that mail, including the Notice of Confirmation of Hearing, was returned from this address. As none of the parties provided the Tribunal with documents, a witness list and witness statements in accordance with the deadlines set out in the Notice of Confirmation of Hearing, a Case Assessment Direction was issued to advise parties of the potential consequences of not doing so. The applicant then provided her documents to Mr. Kosmos and the Tribunal, but the respondents did not respond to the Case Assessment Direction.

Neither respondent appeared at the hearing despite being given a 30 minute grace period from the scheduled start time. I am satisfied that both respondents were provided notice of the hearing. The respondents filed a common Response and were represented by the same representative. The Tribunal corresponded with the respondents through their representative. In addition, the applicant provided both respondents with her Reply by hand, as well as by other means. Once the first representative withdrew, she provided the Tribunal with Mr. Kosmos' mailing address. The Tribunal used his mailing address to contact the respondents, with no indication that he did not receive mail from the Tribunal. Based on these facts I have no reason to doubt that the respondents received notice of the hearing.

9Contrary to what is stated in the preceding paragraph, the personal respondent's Reconsideration Request initially asserts that he was never aware that the applicant had commenced an Application, and was also unaware that he had been named as a respondent. His request states: "Only after receiving a phone call from a family member following the publication in an Ottawa newspaper of an article discussing the Decision did the Personal Respondent become aware that proceedings had been commenced against him."

10This categorical denial of any knowledge of the Application is contested by the applicant. In her submissions she makes two points. First, she notes that when the Tribunal notified the respondents that an Application had been initiated, it did so by sending them a letter. The letter is dated April 20, 2012. It is addressed to the corporate respondent, care of the personal respondent, as well as to the personal respondent directly. The letter is sent to the bar where the personal respondent was engaged as the manager. After the letter was sent the respondents filed a joint Response.

11Second, she re-iterates the evidence that she gave at the hearing, namely that after the respondents filed their Response, the applicant's Reply was hand-delivered to the personal respondent. On June 5, 2012 the applicant's mother (acting as her representative) went to the bar and personally gave the Reply to the personal respondent.

12The personal respondent's position then changes somewhat. He does not respond to the applicant's first point, but in his reply submissions on this Request he acknowledges that he was personally served with the applicant's Reply. However, he states that he did not understand the meaning of the document and simply passed it on to the corporate respondent's human resources manager.

13I do not accept that the personal respondent was unaware that proceedings had been commenced that named him as a party. First, the Tribunal's delivery of its April 20, 2012 letter triggered the filing of a joint response to this Application. That letter was addressed to the personal respondent (both in his personal capacity and in his capacity as the manager of the corporate respondent's bar operation). This suggests that he received and acted upon the letter, otherwise no Response would have been filed.

14Moreover, when the joint Response is filed with the Tribunal, it is accompanied by a covering letter sent by the corporate respondent's human resources advisor to the Tribunal on July 17, 2012. Both the applicant and the personal respondent are copied on that letter.

15The personal respondent's submissions on the Reconsideration Request are silent on this issue and on the applicant's contention that he must have known about the proceedings by virtue of being the recipient of the Tribunal's letter of April 20, 2012. They are also silent on the fact that he was copied on the Response when it was filed with the Tribunal.

16Second, the personal respondent admits to having been served with the Reply, but pleads ignorance as to its significance. However, by his own account, it is a document that he recognises as important enough to pass on to the corporate respondent's human resources advisor. His submissions do not explain why he thought the Reply worthy of the attention of a human resources advisor if he did not understand its importance in the first place.

17The documentary evidence suggests that the personal respondent was aware that an Application had been commenced and that he was named as a party. Having been named as a party, it was his obligation (or that of his representative) to notify the Tribunal and the other parties to this Application of any change in his contact information (see Rule 1.13 of the Tribunal's Rules of Procedure).

18In asserting that his failure to receive notice of the hearing arose through no fault of his own, the personal respondent needs to explain his conduct in the period following the filing of the Application. However, he does not explain how it could be that he was unaware of the April 20, 2012 letter addressed to him. Initially he asserts complete ignorance of any proceedings related to the applicant's termination, but modifies his position when reminded of the fact that he was personally served with the Reply. After acknowledging being served with the Reply he asserts ignorance as to its significance but does not provide an explanation as to why he bothered to pass it on to a human resources advisor. He has not demonstrated that his failure to receive notice of the hearing arose through no fault of his own. For these reasons, I reject this ground of his request.

Are there new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier?

19The personal respondent asserts that if he had been aware of, and present at, the hearing, he would have testified to his relationship with the applicant, his role as an employee of the corporate respondent and his interactions with the applicant in relation to the scheduling of her work.

20None of these are facts and evidence which could not have been made available to Tribunal at the time of the hearing. They could have been presented had the personal respondent participated in the hearing but, whether deliberately or through his own negligence, he failed to attend. Having decided that the personal respondent was at fault for failing to participate in the hearing, I am of the view that he cannot invoke his intended testimony as evidence that was not reasonably obtainable. His request is rejected on this ground.

Order

21The Request for Reconsideration is denied.