Devoe v. Haran, 2013 HRTO 1670

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susan Ann Devoe Applicant

-and-

Prabha Haran and Samantha Thornton Respondents

RECONSIDERATION DECISION

Adjudicator: David Muir Decision Date: October 4, 2013 Citation: 2013 HRTO 1670 Indexed as: Devoe v. Haran

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on September 5, 2012.

2On April 25, 2013, the Tribunal sent an email to the parties requesting that they provide, by May 2, 2013, mutually-agreeable dates to reschedule a previously-scheduled Summary Hearing. The applicant did not respond to this request.

3The Tribunal sent further correspondence by regular mail and email to the applicant on May 23, 2013 asking that the applicant confirm her intentions with respect to the application. The applicant was informed that if she did not advise the HRTO of her intentions by May 29, 2013, the Application could be dismissed as abandoned.

4As of June 27, 2013, the applicant had not responded to the Tribunal’s correspondence of April 25 and May 23, 2013 and the Application was dismissed as abandoned in 2013 HRTO 1132.

5The applicant filed a Request for Reconsideration of the Decision.

6The applicant notes that the Tribunal issued a letter dated May 22 (all dates referred to unless otherwise indicated are in 2013) to the same effect as that issued on May 23 except that it indicated that the applicant was required to respond on or before June 29 instead of May 29. The applicant contends that she received these letters by mail at the same time and was confused about what was required of her. She alleges that she did not realize that they were sent on different dates. The applicant also contends that the May 23 letter should have stated in large bold underlined caps on the front page that the May 22 letter should be disregarded.

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.

12It is clear that the Tribunal made an error in its May 22 letter directing that the applicant provide further agreeable dates to a rescheduled summary hearing. However, the Tribunal corrected its error with a second letter dated May 23 which made it clear that it superseded the earlier letter. It included in its reference line the following:

Re: Susan Devoe v. Prabha Haran and Samantha Thornton

Subject: Amended Request for dates for rescheduling

(Due date changed to May 29, 2013)

On April 25, 2013 the HRTO sent you a email requesting you to provide the parties’ mutually agreeable dates to reschedule the summary hearing in this matter. The due date for your response has now passed and you have not responded to our request for dates.

The HRTO requires confirmation from you with respect to your intentions for this Application. If you wish to proceed with the Application, you must respond to our email of April 25, 2013 as directed and provide the HRTO with the parties’ mutually agreeable dates for rescheduling.

The HRTO draws your attention to Rule 5.4 of the HRTO’s Rules of Procedure, which states:

5.4 The Tribunal may finally determine an Application without further notice to any person who cannot be contacted by the Tribunal according to the contact information provided to the Tribunal by that person.

If you do not respond to this letter by May 29, 2013, the HRTO may deem the Application to be abandoned and close the file.

(emphases in original)

13I am not satisfied that the applicant has provided a credible explanation for her failure to respond to the Tribunal’s Direction of May 23 that she provide alternative dates for a re-scheduled hearing on or before May 29.

14First, the applicant’s various explanations are not consistent. In her request for Reconsideration filed on July 26, the applicant stated as follows:

I confirm that a notice to respond by May 29th, 2013 was received by me in the mail, approx, the 3rd week of May, as I recall. A day later another notice was received by me in the mail, this one requesting a response by June 29th, 2013. I assumed then, logically, that the “respond by” May 29th notice must have been made in error, and that the “respond by” June 29th notice superseded the May 23rd notice re. the May 29th date.

15However, in a letter to the Tribunal dated August 2, the applicant had indicated that she received the May 22 and 23 letters by mail on the same day. The applicant went on to state that she did not notice that the letters were sent out on different dates and was misled and confused by them.

16It is also notable that the applicant refers to receiving materials by mail but does not acknowledge receipt by email. All of the material documents referred to her were sent to the applicant by email as well as by regular mail. In her Application the applicant explicitly consented to delivery of documents by email by indicating that her preferred method of communication was by email in answer to the question on the Application form: “What is the best way to send information to you? (If you check email, you are consenting to delivery of documents by email)”. Notably much, if not all, of the applicant’s correspondence to the Tribunal was also received via email.

17The applicant further states in her August 2 correspondence that she followed the instructions on the one letter that allowed her a further month to respond and believed she did so on June 27. However In her Request for Reconsideration she stated that she responded to the Tribunal’s Direction on June 29. The applicant also asserts that she made several communications to the Tribunal in effect asking for further time to respond to the Direction. Tribunal records indicate that the applicant did send an email to the Tribunal just prior to 5 p.m. on June 29, two days after her Application had already been dismissed, but the communication was not copied to the respondents and therefore could not be accepted by the Tribunal, and in any event did not respond to the Directions to provide additional dates for the hearing. There is no record of any other communications with the Tribunal indicating that the applicant needed further time to provide dates or any communication of any kind in respect of this case between May 22 and June 29.

18I also observe that the Tribunal’s correspondence of May 22 and 23 was in follow-up to an earlier email request for further dates sent on April 25 asking for a response by May 2. The May 22 letter sought a response by June 29, the May 23 letter by May 29. It is not at all clear why the applicant would reasonably have understand that in the follow up to the April 25 correspondence the Tribunal would provide a much greater length of time to respond to the same request. However, even assuming the possibility that the applicant might have been confused by the Tribunal’s correspondence, it is not clear why she did not make inquiries but instead waited until the very latest that she could to provide a non-responsive communication to the Tribunal’s direction to provide additional dates. Rather, I note that the applicant only finally contacted the Tribunal (still failing to comply with any of its earlier directions) after the Tribunal’s Decision dismissing her Application was delivered to her by email and regular mail on June 27. Having regard to the applicant’s failure to provide dates for re-scheduling as directed in the April 25 letter, the explicit and clear content of the amended notice sent on May 23, her failure, even belatedly on June 29 after receiving notice that her Application had been dismissed, to comply with the direction in the May 23 letter, and the inconsistent explanations she subsequently provided, I cannot accept that the applicant was misled or confused about her obligations as she now claims.

19In conclusion, not being able to accept the applicant’s explanations as set out above there is no basis to reconsider the Decision. Accordingly 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.