Forrest v. The Looks Beauty Salon & Beauty Supplies, 2013 HRTO 1990

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ashton-Nicola Forrest

Applicant

-and-

The Looks Beauty Salon & Beauty Supplies, Kate Nyarko and Samuel Nyarko

Respondents

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw
Date: December 2, 2013
Citation: 2013 HRTO 1990
Indexed as: Forrest v. The Looks Beauty Salon & Beauty Supplies

WRITTEN SUBMISSIONS

The Looks Beauty Salon & Beauty Supplies, Kate Nyarko and Samuel Nyarko, Respondents

Self-represented

Introduction

1The respondents seek reconsideration of the Tribunal’s Decision, 2013 HRTO 1803, dated October 25, 2013.

2In their Request for Reconsideration, delivered to the applicant on November 1, 2013 and filed with the Tribunal on November 12, 2013, the respondents rely upon Rule 26.5(d):

26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

3The respondents submit that the other factors in this case are:

a. that they consulted a lawyer who was to call them back and advise if he would represent them, and they provided the lawyer with documents in this matter, but the lawyer did not call them back;

b. that they erroneously recorded the hearing date in the calendar as November 25, 2013 rather than October 25, 2013.

4The applicant was not directed to respond to the Request but nonetheless filed a Reply. It is not necessary for me to consider the applicant’s submissions in order to determine the Request.

Analysis & Decision

5The Tribunal’s Practice Direction on Reconsideration 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.

6Reconsideration is only granted in exceptional circumstances: see Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14.

7The Tribunal dismisses the Request for Reconsideration as the respondents have failed to show that there are any factors that outweigh the public’s interest in the finality of the Tribunal’s decision.

8The record shows the respondents failed to respond to the applicant’s RFOP seeking to add the personal respondents, as owners of the corporate respondent, despite it being delivered to Mr. Nyarko’s attention as the corporate respondent on January 28, 2013 and also delivered to Ms. Nyarko on August 19, 2013.

9The respondents took no steps in this matter after attending mediation and serving their arguably relevant documents in March 2013. The corporate respondent failed to file its witness lists or summaries of witness’ evidence as required by the March 5, 2013 Notice of Confirmation of Hearing. The respondents also did not comply with the Case Assessment Direction (CAD) dated September 6, 2013 directing them to file their witness list and summaries of evidence within 7 days.

10The respondents do not dispute they received the Notice of Confirmation of hearing. I note the Notice was sent by mail to the address provided in the Response. It was not returned to the Tribunal, and the respondents in fact confirm they received it because they say they recorded the hearing date wrong. The October 4, 2013 hearing date was confirmed in the September 6, 2013 Case Assessment Direction (CAD) which noted that documents were to have been provided by August 20, 2013 which was 45 days prior to the hearing. The respondents do not dispute they received the September 6, 2013 CAD which was sent by mail and fax to the address and fax number provided in their Response and was not returned as undeliverable.

11The respondents state they recorded the hearing date as November 25, 2013 instead of October 25, 2013 and this explains their failure to attend the hearing. The respondents do not explain why they failed to attend the hearing on the day actually set for the hearing as confirmed in the Notice of Hearing and the CAD, which was October 4, 2013. The respondents also state that they consulted a lawyer who did not call them back but do not explain why this prevented them from attending the hearing as scheduled.

12The respondents’ failure to attend the hearing is consistent with their earlier failure to respond to the RFOP and comply with their responsibilities for production of witness lists and statements as directed by the Notice of Hearing and the CAD. The Tribunal does not accept that it was simply an error. The respondents received notice of the hearing and there are no exceptional circumstances which would explain their failure to attend the scheduled hearing date which outweighs the public interest in finality of the decision. See Taranco v. Michedes (a.k.a. Michaelides), 2011 HRTO 1188.

13The Request for Reconsideration is dismissed.