R.H. v. Wee Watch Day Care Systems, 2013 HRTO 1968

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

R.H. by her Litigation Guardian M.D. Applicant

-and-

Wee Watch Day Care Systems and K.H. Respondents

A N D B E T W E E N:

R.H. by his Litigation Guardian M.D. Applicant

-and-

Wee Watch Day Care Systems and K.H. Respondents

RECONSIDERATION DECISION

Adjudicator: Alison Renton Date: November 28, 2013 Citation: 2013 HRTO 1968 Indexed as: R.H. v. Wee Watch Day Care Systems

WRITTEN SUBMISSIONS

R.H. and R.H. by their Litigation Guardian M.D., Applicants

T.H., Representative

1In a Decision dated October 22, 2013, the Tribunal dismissed two Applications that had been filed pursuant to section 34 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”) when the applicants failed to participate in a Summary Hearing that had been scheduled for October 21, 2013.

2The applicants filed a joint Request for Reconsideration (“the Request”) on November 7, 2013. The Tribunal has not required a response to the Request from the respondents.

3For the reasons set out below, the applicants’ Request is dismissed.

Background

4These Applications, which are identically worded, were filed by a mother on behalf of her children, a sister and brother, against the respondents on May 8, 2013 alleging discrimination with respect to services. Pursuant to Rule 3.11.1, the Tribunal has used the initials of their representative and the respondent K.H. to protect the identity of the children.

5The applicants alleged that the respondent K.H., who provides child care services, terminated child care services for the children because of the applicants’ father, who is their representative, who is also K.H.’s brother. The applicants alleged that when they contacted the respondent Wee Watch Day Care Systems, the applicants were told that the Code did not apply to it. The applicants allege that the termination of these services was discriminatory.

6Separate Responses were filed by both respondents and both respondents denied that the services were terminated for discriminatory reasons. Both submitted that the services were terminated because of safety concerns raised by K.H. about the applicants’ father and that the Applications were vexatiously filed against them.

7The Tribunal issued a Case Assessment Direction dated July 17, 2013 (“CAD”) directing, on its own initiative, that a summary hearing would be scheduled to determine whether the Applications should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Applications, or part of the Applications, would succeed. The Tribunal determined that the summary hearing for the Applications would be heard together as the Applications were identical.

8On July 22, 2013, the Tribunal sent the parties a Notice of Joint Summary Hearing (“the notice”) scheduling the summary hearing, by teleconference call, for October 21, 2013 (“the summary hearing”). The notice set out the call-in information for the summary hearing. The notice was sent to an address the applicants’ representative had advised the Tribunal, on May 29, 2013, to which the applicants and their representative would be moving effective June 1, 2013. Neither the notice nor the CAD was returned to the Tribunal as being undeliverable.

9The respondents participated in the summary hearing, but the applicants did not. Consistent with the Tribunal’s practices, the Tribunal held down the start of the hearing for 30 minutes. When the hearing reconvened at 10:00 a.m., the applicants still had not called in or otherwise communicated with the Tribunal, and the Applications were dismissed orally by the Tribunal at that time as being abandoned.

10Subsequently, the Decision dismissing the Applications was issued on October 22, 2013. In the Decision, the Tribunal that it found that the applicants received timely and proper notice of the summary hearing and that it had not received any indication the applicants would not be attending the hearing. In the absence of the applicants or any explanation for their failure to participate in the hearing, the Applications were dismissed as abandoned.

The Applicants’ Request

11The applicants base their Request upon Rules 26.5(a) to (d) of the Tribunal’s Rules of Procedure. They submit that they understood that the reasonable prospect of success issue, as set out the CAD, only pertained to the respondent Wee Watch Day Care Systems, and that it did not indicate that a dismissal against the respondent K.H. would be considered. As the applicants did not intend to challenge the respondent Wee Watch Day Care Systems on this issue, the applicants did not attend the summary hearing to make submissions. Accordingly, the applicants submit, the Tribunal erred in its Decision when it dismissed the Applications against both respondents. They submit that procedural fairness and natural justice entitle the applicants to notice that the Tribunal intended to dismiss the proceedings against the respondent K.H., and that they are entitled to reasonable notice of the case they are required to meet and an opportunity to be heard.

12Further, the applicants submit that the Tribunal did not provide them with notice that the Applications would be considered abandoned if they did not attend the hearing. The applicants requests that the proceedings be re-instituted against the respondent K.H.

Law and Analysis

13Rule 26.5 of the Tribunal’s Rules of Procedure sets out the limited circumstances in which reconsideration may be granted:

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.

14It is also useful to consider the Tribunal’s Practice Direction on Reconsideration, which states in part:

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.

15As 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.

16In this case, the applicants have marked off all the grounds under Rule 26.5.

17Rule 26.5(a) requires that an applicant provide new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. As the applicants have not provided any submissions addressing this issue, I find that the Request on this basis fails.

18Rule 26.5(b) requires that the party seeking reconsideration demonstrate that it did not receive, through no fault of its own, notice of the proceeding or a hearing. The applicants do not claim that they did not receive notice of the summary hearing. Instead, they submit that they chose not to participate in it as they understood that it was only about the respondent Wee Care Day Watch Systems, and not about the respondent K.H. It is clear that the applicants received notice of the summary hearing and accordingly their Request based upon Rule 26.5(b) fails.

19It appears that the applicants have based their Request upon Rules 26.5(c) and (d) as essentially their Request is based upon procedural fairness and natural justice arguments despite the absence of jurisprudence or procedure being cited and the absence of submissions about the general or public interest being addressed. Specifically, the applicants assert that they did not know that the Tribunal would dismiss their Applications if they failed to attend the summary hearing, and that they did not know that the summary hearing would pertain to both respondents. These arguments, in my opinion, do not have merit.

20The notice that the Tribunal sent to the parties scheduling the summary hearing by teleconference contained the following information, at page 4:

FAILURE TO ATTEND THE HEARING

If you do not attend the hearing after receiving proper notice, the HRTO may proceed in your absence (if you are a respondent or intervenor) or dismiss the Application as abandoned (if you are the applicant).

21Further, under the heading “Important Information” contained on page 2 of the notice, on which the parties are directed to read the entire notice right away, the parties were referred to Rule 19A of the Tribunal’s Rules of Procedure (the summary hearing rule) and the Tribunal’s Practice Direction on Summary Hearing Requests (“the practice direction”). The Tribunal’s website address was provided. In the practice direction, the Tribunal warns, “if the applicant does not attend the summary hearing, the Application will usually be dismissed as abandoned”.

22In this case, the applicants received the notice scheduling the summary hearing and I find that they had sufficient notice that their Applications may be dismissed as abandoned if they did not participate in the summary hearing. Accordingly, their Request on this ground fails.

23With respect to their submission that they believed that the summary hearing only pertained to the Response filed by the respondent Wee Watch Day Care Systems, I find that this position is without merit. At para. 2 of the CAD, the Tribunal stated that the summary hearing was scheduled upon the Tribunal’s own initiative “…to determine whether these Applications should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that …. [they] will succeed”. The Tribunal noted, at para. 5, that the respondents had provided an explanation of the events in question to which the applicants had not responded by filing a Reply. The Tribunal further noted, at para. 6, the position the respondent Wee Watch Day Care System took in its Response.

24Then, at paras. 7 and 8, the Tribunal stated:

The Registrar will schedule a half-day summary hearing by telephone. The applicant [sic] will proceed first during this summary hearing. The applicant [sic] shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicant [sic] will prove a link between the respondents’ actions and the grounds cited. The applicant [sic] shall also be prepared to respond to the arguments in the respondent’s arguments made in their Responses….

If the Tribunal determines that these Applications have no reasonable prospect of success, they will be dismissed. If the Tribunal does not find that these Applications should be dismissed under Rule 19A, they will continue in the Tribunal process.

25While it is true that para. 7 of the CAD could create confusion given the use of the singular “Application” and “applicant”, rather than correctly using the plural of these words, I find that it was sufficiently clear that the purpose of the summary hearing, when reading the CAD as a whole, was to determine whether or not both Applications could continue to proceed against both respondents.

26In this regard, para. 7 of the CAD required the applicants to be prepared to do two things: first, to make argument about why the Applications should not be dismissed and to point to the evidence on which the applicants would prove a link between the respondents’ actions and the Code grounds cited in the Application; and second, to respond to the respondent Wee Care Day Care Systems’ arguments made in both Responses they filed in response to the Applications filed. The first required the applicants to specifically address both respondents based upon the allegations in the Applications; the second required the applicants to respond specifically to the respondent’s Wee Care Day Care Systems’ position advanced in its Responses.

27In this regard, there was nothing in either the CAD or the notice to indicate that the summary hearing pertained only to the respondent Wee Watch Day Care Systems, or, more explicitly, that it did not pertain to the respondent K.H. Further, the notice’s re line identified both respondents and was sent to all the parties.

28Accordingly, I find that the Request fails on the basis of Rule 26.5(c) and (d).

29Based upon the above, the Request is dismissed.