HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Heather Duncan
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services
Respondent
RECONSIDERATION DECISION
Adjudicator: David A. Wright
Indexed as: Duncan v. Ontario (Community Safety and Correctional Services)
WRITTEN SUBMISSIONS
Heather Duncan, Applicant
Self-represented
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Respondent
Christopher Diana, Counsel
1The applicant seeks reconsideration of the Tribunal’s Decision, 2012 HRTO 2400, dismissing this Application as abandoned after the applicant failed to attend the teleconference summary hearing scheduled for December 20, 2012. For the reasons that follow, the Request for Reconsideration is granted and the Registrar will schedule a new date for the summary hearing.
2The sequence of events leading to the dismissal was as follows. On August 13, 2012, the Tribunal issued a Case Assessment Direction scheduling a preliminary hearing by teleconference on whether the Application should be dismissed because of delay. On August 23, 2012, a Notice of Confirmation of Hearing was issued scheduling the hearing for November 23, 2012. Unfortunately, as a result of an error by the Tribunal, the Notice was delivered to the respondent, but not its counsel.
3On November 23, 2012, the applicant called into the telephone call but counsel for the respondent did not. The Tribunal’s practice where one party does not call in is to proceed in that party’s absence, as indicated on the Notice of Hearing. However, the Vice-chair presiding on the call, who had been recently appointed to the Tribunal, contacted counsel for the respondent in error with the applicant on the line, contrary to the Tribunal’s practice, to inquire as to why he was not on the call. Counsel for the respondent advised the Tribunal that he was unaware of the call as it had not been forwarded to him by the respondent and the Vice-chair granted an adjournment.
4The matter was rescheduled to take place on December 20, 2012. The applicant did not attend the teleconference. As the Tribunal normally does when an applicant does not attend a scheduled hearing by teleconference or in person, the Application was dismissed as abandoned.
5Rule 26.5 reads as follows:
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.
6The applicant relies on Rule 26.5 (a), (c) and (d). She makes various arguments, but the only one I need to deal with is that she argues that she was treated differently from the respondent. The first adjudicator telephoned counsel for the respondent (in error) when he did not attend, but the second adjudicator did not telephone the applicant when she did not attend. This resulted from errors by the Tribunal, for which I apologize. In my view, the need to ensure that both parties to a case are treated similarly in similar circumstances outweighs the public interest in the finality of Tribunal decisions. The applicant was unfortunately treated differently from the respondent. In these particular circumstances, a new summary hearing should be held.
7The Request for Reconsideration is granted. A summary hearing will be scheduled to take place as soon as possible.
Dated at Toronto, this 7th day of February, 2013.
“Signed by”
David A. Wright
Associate Chair