HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sarit Silverberg
Applicant
-and-
Royal LePage Real Estate Services Ltd.
Respondent
RECONSIDERATION DECISION
Adjudicator: Jennifer Scott
Indexed as: Silverberg v. Royal LePage Real Estate Services Ltd.
WRITTEN SUBMISSIONS
Sarit Silverberg, Applicant
Self-represented
Introduction
1This is an Application 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 race, ethnic origin, disability and creed.
2By Notice of Confirmation of Hearing (“Notice of Hearing”) dated February 8, 2013, the matter was set down for hearing on July 2 and 3, 2013. The Notice of Hearing directed the parties to deliver to each other and file with the Tribunal a list of arguably relevant documents by March 1, 2013. It also directed the parties to exchange with one another and file with the Tribunal the documents they intended to rely upon at the hearing, a list of their witnesses and a summary of their witnesses’ anticipated evidence (the “Pre-Hearing Materials”) by no later than May 17, 2013.
3The respondent filed its list of documents on March 1, 2013. The applicant did not file her list of documents.
4The respondent filed its Pre-Hearing Materials on May 17, 2013. The applicant did not file her Pre-Hearing Materials.
5In a June 7, 2013 Case Assessment Direction (the “CAD”), the Tribunal summarized the applicant’s disclosure obligations set out in the Notice of Hearing and directed the applicant to provide her Pre-Hearing Materials immediately, and in any event, within seven (7) days of the date of the CAD (June 14, 2013). The applicant was advised if she failed to file the Pre-Hearing Materials, her Application may be dismissed as abandoned. The CAD was sent to the applicant electronically and by regular mail. The applicant did not file her Pre-Hearing Materials as directed.
6By Decision dated June 20, 2013, 2013 HRTO 1105, the Tribunal dismissed the Application as abandoned because the applicant failed to comply with any of her pre-hearing obligations and the Tribunal’s direction in the CAD. The hearing dates of July 2 and 3, 2013 were cancelled.
7On July 3, 2013, the applicant filed a Request for Reconsideration.
Decision
8The Request for Reconsideration is denied.
The Reconsideration Test
9Under 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.
10The 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. Rule 26 of the Tribunal’s Rules of Procedure states:
26.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days from 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.
11The Tribunal’s Practice Direction on Reconsideration begins with the following statements:
Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO 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.
ANALYSIS
12In the Request for Reconsideration, the applicant states she was unable to properly prepare her Pre-Hearing Materials because of illness, proof of which would be provided. The applicant advised further that she did not receive the CAD until two days before the deadline to provide the required Pre-Hearing Materials.
13The applicant did not file documentation with her Request for Reconsideration or thereafter establishing that she had an illness which prevented her from complying with her hearing obligations. The applicant did not contact the Tribunal after receiving the CAD to advise the Tribunal that she was unable to comply with the Direction set out therein. She also did not contact the Tribunal in the two-week period between the CAD and the Decision dismissing the Application. The first time the applicant contacted the Tribunal was on June 24, 2013, after the Decision was released.
14I find the applicant has not met the burden of establishing the criteria justifying Reconsideration. The applicant has not filed any evidence that she was unable to comply with the Tribunal’s hearing requirements because of illness. The applicant acknowledges that she received the CAD, but fails to provide any explanation as to why she failed to comply with its Direction or failed to contact the Tribunal to advise she was unable to comply with the Direction.
15The applicant has failed to establish compelling and extraordinary circumstances that outweigh the public interest in finality of decisions. For this reason, the Request for Reconsideration is denied.
Dated at Toronto, this 25th day of November, 2013.
“Signed by”
Jennifer Scott
Vice-chair