Howe v. SP Data Capital Corporation ULC, 2013 HRTO 391

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeannie Howe

Applicant

-and-

SP Data Capital Corporation ULC and Cheryl Tost

Respondents

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott

Date: March 7, 2013

Citation: 2013 HRTO 391

Indexed as: Howe v. SP Data Capital Corporation ULC

WRITTEN SUBMISSIONS

Jeannie Howe, Applicant

Self-represented

SP Data Capital Corporation ULC and Cheryl Tost, Respondents

Sara Benincasa, Representative

Introduction

1On January 11, 2013, the Tribunal issued its decision (2013 HRTO 64) in this Application (the “Decision”). The Tribunal dismissed the Application as abandoned because the applicant failed to attend the hearing scheduled for January 7, 2013.

2On February 11, 2013, the applicant sought reconsideration of the Tribunal’s decision as provided for in section 45.7 of the Code. The applicant alleges that her failure to attend the hearing was through inadvertence because she believed the hearing had been adjourned at the request of the respondents. As such, she disputes the Tribunal’s finding that she had abandoned the Application.

DECISION

3The Request for Reconsideration is granted.

LEGISLATIVE PROVISIONS

4Sections 45.7 and 45.8 of the Code provide the Tribunal with authority to reconsider its decisions while confirming the finality of the Tribunal’s decisions:

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.

45.8 Subject to section 45.7 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.

5Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration as well as a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers (Practice Direction #4 Reconsideration).

6Relevant to this Decision are the following Rules:

26.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision.

26.3. A Request for Reconsideration must include:

(a) reasons for the request, including the basis upon which the Tribunal is asked to grant the request for reconsideration;

(b) submissions in support of the request; and

(c) the remedy or relief sought.

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;

(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;

(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.

7Practice Direction #4 states, in part:

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.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

ANALYSIS

8On May 18, 2012, the Tribunal issued a Notice of Confirmation of Hearing to the parties confirming that a hearing of the Application would take place on January 7, 2013. The Notice of Confirmation of Hearing directed the parties to file their hearing documents and witness statements by November 23, 2012.

9On December 10, 2012, the respondents requested an adjournment of the hearing because a member of the corporate respondent’s senior management team was unable to attend the hearing. The respondents requested that the hearing be rescheduled for any day after January 14, 2013 or any day in February 2013. The applicant advised the respondents that she consented to their adjournment request and indicated she would change her day-off request.

10On December 12, 2012, the Tribunal issued an Interim Decision denying the adjournment and directing the parties to comply with their pre-hearing obligations by December 20, 2012. The respondents filed their pre-hearing documents on December 20, 2012. On December 21, 2012, the applicant filed her pre-hearing documents.

11The applicant failed to attend the hearing on January 7, 2013 and the Application was dismissed as abandoned. The applicant sought reconsideration of the Tribunal’s decision. In the Reconsideration Request, the applicant states she believed the hearing had been adjourned to January 14, 2013, the first date suggested by the respondents for the rescheduling of the hearing. The applicant requested January 14, 2013 off from work and she attended work on January 7, 2013, the date of the hearing.

12The respondents contest the applicant’s Reconsideration Request on the basis that to require the respondents to attend the hearing again would be unjust. They state the corporate respondent paid the wages of staff to attend the hearing on January 7, 2013, and that one of the managers had to delay a flight to the USA and another had to make alternate daycare arrangements to attend the hearing. They submit further that at a meeting to discuss training scheduled for January 14, 2013, the applicant advised her supervisor that she could not attend because she was at a Tribunal hearing on that day.

13Rule 26.5(d) provides that reconsideration may be granted where other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions. In this case, I am satisfied that the applicant believed the hearing had been adjourned to January 14, 2013 and this is the reason why she did not attend the hearing on January 7, 2013. All of her actions with the Tribunal and with her employer are consistent with this finding. The applicant filed her documents in preparation for the hearing and requested January 14, 2013 off work believing it was the rescheduled hearing date. The applicant advised her employer that she could not attend training on January 14, 2013 because she was at a Tribunal hearing. The applicant has explained to the Tribunal how she misinterpreted the respondents’ adjournment request and she acted relatively quickly when she learned of her error. I find that the applicant made an honest mistake when she failed to attend the hearing on January 7, 2013 and there is no significant prejudice to the respondents in rescheduling the hearing. For these reasons, the applicant’s Reconsideration Request is granted and a new hearing date will be scheduled.

14I am not seized.