Darlene Kaboni v. Manulife Financial, Kendra Haggerty and Tracy Salois, 2013 HRTO 1910

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darlene Kaboni

Applicant

-and-

Manulife Financial, Kendra Haggerty and Tracy Salois

Respondents

RECONSIDERATION DECISION

Adjudicator: Brian Eyolfson Date: November 19, 2013 Citation: 2013 HRTO 1910 Indexed as: Kaboni v. Manulife Financial

WRITTEN SUBMISSIONS

Darlene Kaboni, Applicant

Self-represented

Introduction

1On August 1, 2013, the Tribunal issued a Decision in this Application, 2013 HRTO 1341, dismissing the Application on the basis that the applicant was deemed to have abandoned the Application. The applicant has asked the Tribunal to reconsider its Decision.

BACKGROUND

2This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on October 7, 2010.

3By Interim Decision dated October 12, 2011, 2011 HRTO 1832, the Application was dismissed as against the Canada Post Corporation (the “CPC”), and various individuals employed by the CPC, on the basis that those named respondents were subject to federal rather than provincial jurisdiction. The Application was not dismissed as against the three remaining respondents.

4By correspondence dated January 25, 2012, the applicant requested that her entire Application file be transferred to the Canadian Human Rights Tribunal. On February 2, 2012, Tribunal staff advised the applicant that her file could not be transferred, but she could withdraw her Application with the Tribunal and file an application with the Canadian Human Rights Commission (the “CHRC”).

5By letter to the applicant dated January 4, 2013, the Tribunal indicated that it had not heard from the applicant with respect to her intentions with the Application, and directed the applicant to indicate whether she intended to proceed with the Application. On January 15, 2013, the applicant confirmed that she wished to continue with her Application, and that she had transferred the CPC portion of her Application to the CHRC.

6After confirming that the applicant wished to proceed with the Application, the Tribunal attempted to deliver the Application to the remaining respondents at the address provided by the applicant. All copies of the Application sent to the remaining respondents were returned to the Tribunal as undeliverable.

7By letter dated May 1, 2013 the Tribunal advised the applicant that Notices of Application sent to the remaining respondents were returned to the Tribunal as undeliverable. The Tribunal asked the applicant to provide, or confirm, accurate contact information for the respondents, noting that previous decisions of the Tribunal have explained that it is the responsibility of an applicant to do so. See Guild v. Kyle-Jansen, 2008 HRTO 347 and Osman v. Elle Productions Security, 2009 HRTO 1426. The applicant was also referred to Rule 6.6 of the Tribunal’s Rules of Procedure, which states that an application accepted by the Tribunal for processing will not be dealt with in respect of a respondent that cannot be contacted at the addresses provided in the Application. The Tribunal’s correspondence to the applicant also indicated that a failure to provide the requested information by May 21, 2013 might result in the dismissal of the Application. No response was received from the applicant.

8By correspondence dated July 9, 2013, the applicant was again asked to provide the information requested in the Tribunal’s May 1, 2013 correspondence. The Tribunal’s July 9, 2013 correspondence to the applicant indicated that a failure to respond by July 16, 2013 might result in the dismissal of the Application as abandoned.

9As of August 1, 2013, the applicant had not responded to the Tribunal’s May 1 or July 9, 2013 correspondence. The Tribunal issued a Decision, 2013 HRTO 1341, deeming the applicant to have abandoned the Application, and the Application was dismissed on that basis.

REQUEST TO RECONSIDER

10Under 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.

11The 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 are Rules 26.1 and 26.5 which state:

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.

12The Tribunal’s Practice Direction on Reconsideration begins with the following statement:

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.

13As 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.

14While the applicant did not file an actual Request for Reconsideration (Form 20), the Tribunal received correspondence from the applicant on August 23, 2013, in response to the Tribunal’s August 1, 2013 Decision dismissing her Application as abandoned. In her correspondence, the applicant requests that the Application be re-opened, or left open, to proceed. She submits that she has not abandoned the Application. In the circumstances, the Tribunal will treat the applicant’s correspondence as a request for reconsideration.

15In her August 23, 2013 correspondence, the applicant submits that the Tribunal’s letter to her dated May 1, 2013 asked her to provide, or confirm, accurate contact information for the remaining individual respondents. She submits that she did not respond to the Tribunal’s correspondence because she does not know the home addresses of the individual respondents, or where they now work, which is not to say that she does not want to proceed as against the remaining organizational respondent, Manulife Financial. She submits that she gave the information that she had regarding Manulife Financial. The applicant states that, as of the time of her correspondence, she still does not know any other information pertaining to the individual respondents, other than what was in her initial Application.

16In my view, the applicant has not established any of the criteria set out in Rule 26.5 of the Tribunal’s Rules that would lead to reconsideration. It is clear that the applicant received the Tribunal’s May 1, 2013 letter to her, wherein the Tribunal indicated that Notices of Application sent to all of the remaining respondents were returned as undeliverable, and that the Tribunal could not reach the respondents at the address the applicant provided in the Application. The Tribunal’s May 1, 2013 letter requested that the applicant provide, or confirm, accurate contact information for all of the remaining respondents, noting that previous decisions of the Tribunal have explained that it is the responsibility of an applicant to do so. See Guild, supra, and Osman, supra. The applicant was also referred to Rule 6.6 of the Tribunal’s Rules of Procedure, which states that an application accepted by the Tribunal for processing will not be dealt with in respect of a respondent that cannot be contacted at the addresses provided in the Application. The Tribunal’s letter also indicated that a failure to provide the requested information by May 21, 2013 might result in the Application being dismissed, and the applicant has acknowledged that she did not respond to the Tribunal’s letter as directed.

17Further, the applicant has indicated in her most recent correspondence to the Tribunal requesting reconsideration that she still does not have any other contact information for the respondents, other than what she previously provided, nor has she confirmed in any way the accuracy of the contact information for the respondents that she has provided thus far.

18Considering all of the circumstances, I find that the applicant in this case has not established any of the threshold criteria justifying reconsideration. In particular, the applicant has not established any factors or circumstances that, in my view, outweigh the public interest in the finality of Tribunal decisions.

19The request to reconsider the Tribunal’s Decision dismissing this Application as abandoned is denied.