HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Alphia Alcee
Applicant
-and-
Ontario Family Group Homes Inc. and Dawn Grant
Respondents
RECONSIDERATION DECISION
Adjudicator: Geneviève Debané
Decision Date: March 14, 2013
Indexed as: Alcee v. Ontario Family Group Homes Inc.
WRITTEN SUBMISSIONS
Alphia Alcee, Applicant
Bay Ryley, Counsel
Ontario Family Group Homes Inc., Respondent
Lisa Corrente, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability. The Tribunal issued a Decision on May 23, 2012, 2012 HRTO 1030 (the “Decision”), dismissing the Application.
2On September 7, 2012, the applicant filed with the Tribunal a Request for Reconsideration (the “Request”) of the Decision. This Reconsideration Decision deals with the applicant’s Request.
3On October 2, 2012, the applicant wrote to the Tribunal to advise that the personal respondent Dawn Grant had not received the Request because it had been returned. The applicant advised that she did not have any other contact information for Ms. Grant.
4On October 4, 2012, the corporate respondent filed detailed submissions in response to the applicant’ Request. In these submissions, the corporate respondent advised that it did not have Ms. Grant’s most recent address. As such, Ms. Grant, who is a party to this Application, has had no notice of the applicant’s Request.
Background
5The applicant filed her Application on June 3, 2010, and identified that communication should be made through her alternate contact, Byron Mortley. On the Application both Mr. Mortley and the applicant have the same address. On August 27, 2010, the respondents filed a common response in which they deny the alleged discrimination.
6On October 20, 2010, Mr. Mortley filed a Reply on behalf of the applicant.
7On February 16, 2011, the parties, including Mr. Mortley, attended a mediation during which the matter was not resolved.
8On July 11, 2011, the Tribunal issued a Notice of Confirmation of Hearing which set a hearing date of November 25, 2011.
9On October 25, 2011, Mr. Mortley wrote to the Tribunal to advise that the applicant had suffered a stroke on October 13, 2011, and that the applicant was unsure as to whether she could participate at the scheduled hearing.
10On October 31, 2011, the Tribunal issued a Case Assessment Direction advising that the applicant had to advise by November 16, 2011, if she was seeking an adjournment of the hearing.
11On November 7, 2011, Mr. Mortley wrote to the Tribunal to request an adjournment of the hearing until the summer of 2012.
12On November 14, 2011, the Tribunal granted the applicant’s adjournment request and advised that it would canvass hearing dates in June or July of 2012.
13On February 14, 2012, the Tribunal sent a Confirmation of Rescheduled Hearing for June 20, 2012.
14On February 23, 2012, the respondents filed a Request for an Order During Proceedings (the “Request”) asking that the applicant be compelled to provide a medical certificate confirming that she is “able to attend at and fully participate in the hearing”.
15The applicant did not file a Form 11, Response to the respondents’ request.
16On February 29, 2012, counsel wrote to the Tribunal to advise that they were no longer representing Ms. Grant. On April 2, 2012 counsel provided to the Tribunal and the applicant Ms. Grant’s last known address.
17The Tribunal issued a Case Assessment Direction dated April 17, 2012 (“the April CAD”), in which the Tribunal states:
The Tribunal therefore directs the applicant within seven days of the date of this Case Assessment Direction to:
a. Deliver to the respondent and file with the Tribunal a Form 11 Response to the Request; and
b. This Form 11 should clearly indicate whether the applicant consents or opposes the Request and any reasons for her opposition.
The applicant did not comply with the directions in the April CAD.
18On April 30, 2012, the Tribunal canvassed the availability of the parties for a Case Management Conference Call. On May 1, 2012, Mr. Mortley responded on behalf of the applicant.
19On May 1, 2012, the Tribunal sent to the parties a Notice of Case Management Conference Call, which scheduled a Case Conference via telephone on May 4, 2012 at 10 a.m.
20The Tribunal waited until 10:30 a.m.; neither the applicant nor Mr. Mortley participated in the Case Conference call.
21On May 7, 2012, the Tribunal issued a Case Assessment Direction (the “May CAD”) which states at paragraphs 7 and 8:
The Tribunal therefore directs the applicant by no later than May 11, 2012 to:
a. Deliver to the respondent and file with the Tribunal a Form 11 Response to the Request;
b. This Form 11 should clearly indicate whether the applicant consents or opposes the Request and any reasons for her opposition; and,
c. State whether she wishes to continue with this Application and if so, explain her failure to attend on the conference call.
If the applicant does not comply with the Directions set out in this Case Assessment Direction then the Tribunal may dismiss the Application as abandoned.
22On May 23, 2012, having received no response from the applicant to the May 7 Case Assessment Direction, and the time for responding having passed, the Tribunal dismissed the Application.
The parties’ submissions
23In the Request, the applicant takes the position that other facts exist that outweigh the public interest in the finality of the Decision. The applicant explains that she suffered a stroke on October 13, 2011, and consequently the hearing scheduled on November 25, 2011, was adjourned. The applicant states that thereafter, she became reliant on Mr. Mortley, a personal friend, as her representative. The Tribunal’s records confirm that Mr. Mortley was assisting the applicant with the proceeding before the Tribunal at least as early as October 25, 2011.
24The applicant states that on February 23, 2012, since she knew that she was not yet well enough to participate at the hearing she did not file a medical certificate confirming her ability to attend the hearing, and she was confused because this request was premature because the hearing had not yet been scheduled. I note that this is not accurate since the Notice of Hearing was sent to the parties on February 14, 2012.
25The applicant states that Mr. Mortley told her that she should be home between 10 and 4 on May 4, 2012, and to expect the Tribunal to call her. The applicant states that she did not know that she had to call in to the conference call and that is why she failed to participate.
26The applicant states that Mr. Mortley was out of town for one month but does not identify on what dates he was unavailable.
27The applicant states that she did not file her Request within 30 days or comply with the various Tribunal directions “due to her confusion as to the Tribunal’s procedure and her own legal rights, and in particular her illness and her concomitant reliance on Mr. Mortley who was ultimately unable to assist”. The applicant attached a letter from her medical doctor dated August 16, 2012 stating: “Now patient is able to participate in court.”
28The corporate respondent opposes the applicant’s Request on a number of grounds including that the applicant has failed to provide a satisfactory explanation for being “entirely unresponsive” and that the applicant’s explanations are insufficient and untenable. Their submissions include the position that Ms. Alcee failed to advise as to her position with respect to the respondent’s Request for Order and that it was clear that at a minimum she should advise whether she consented to or opposed the Request; and that if the applicant was capable of participating in the call, she should at a minimum have made enquiries to the Tribunal after the conference call.
29The corporate respondent also points to the fact that the applicant has failed to provide any medical documentation which would support her position that it was her illness that prevented her from filing the Request in a timely manner or otherwise being able to respond to the Tribunal.
30The respondent also raises the issue that it is prejudiced because Ms. Grant cannot be located and the home in which the applicant worked is no longer being operated by the respondents.
31The applicant in Reply to the respondent’s submissions filed an additional doctor’s note, this one dated July 18, 2012, which states “Patient not able to concentrate. Her memory is poor. She still has slurred speech. She is not able to participate in court.” Despite the respondent’s specific reliance on the issue of prejudice, the applicant did not address this in her Reply.
Decision
32For the reasons that follow the applicant’s Request is denied.
33The Tribunal has issued Rules governing such requests; most relevant to this Decision is Rule 26, which states:
26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of 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.
34As 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.
35The Request for Reconsideration was not filed within 30 days of the Decision. The Tribunal must decide whether it is appropriate to consider the Request notwithstanding the delay in filing. Rule 26.1 of the Tribunal’s Rules of Procedure provides that any party may request reconsideration of a final Decision of the Tribunal within 30 days from the date of the Decision. Rule 26.5.1 further provides that a Request for Reconsideration made more than 30 days following the Decision will not be granted unless the Tribunal determines that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay, see also: Way v. Coalition Against Psychiatric Assault, 2011 HRTO 2091.
36It is incumbent on the applicant to provide a reasonable explanation for the delay in filing this Request. Though there are some medical documents in support of the Request, I find that they do not support that the applicant was incapable of filing a timely Request for Reconsideration.
37There is also no explanation as to when Mr. Mortley left for a month, exactly what time period he was unavailable, and why he did not contact the Tribunal upon his return to file a timely Request or to advise that indeed the applicant wished to proceed with this Application. In the absence of any such explanation, I find that the delay was not incurred in good faith.
38Regardless, I find that the delay in filing this Request has had a significant prejudice to the personal respondent Ms. Grant. There is no obligation for Ms. Grant to keep the Tribunal advised of her contact information, since the Application has been dismissed. The delay in filing this Request has resulted in Ms. Grant not having notice that this Application may proceed against her. It is the applicant’s responsibility to ensure that the Request was delivered to all respondents, including Ms. Grant. Notice is the most basic and fundamental right of natural justice.
39I note that Ms. Grant is named in the Application because her conduct is central to the allegations in the Application; to allow the Application to proceed would therefore also prejudice the corporate respondent in its defence.
40Therefore, having considered the matter I find that it is not appropriate to extend the time for the applicant to file the Request, in light of the applicant’s explanation and the significant prejudice caused to the respondents.
41Regardless, I have considered the applicant’s submissions with respect to the request and would have dismissed it on the basis that she has not established that “other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.”
42I have carefully reviewed the applicant’s submissions in support of her Request, and I note that this is not a case in which the applicant states that she did not receive notice of the proceedings or the numerous Case Assessment Directions that were sent to her.
43Though the applicant takes that position that her illness prevented her from complying with the Tribunal’s numerous directions, I do not find that the evidence as a whole supports this position. The applicant concedes that she was sufficiently well to participate in the May 4, 2012 telephone case conference – her position is that she missed that call because she misunderstood that she was to call in. This evidence must be reconciled against the two brief doctor’s notes dated July and August of 2012. The July note indicates the applicant is unable to participate in “court” and provides some indication of limitations while the August note merely indicates the applicant “now … is able to participate”. Neither doctor’s notes speak to her condition at any other time than July and August of 2012. Even if I were to find that as of July 2012 the applicant was not able to participate in a full hearing on the merits, I have no evidence to suggest she was under a complete incapacity at any time and, more importantly, I do have evidence that she at least had sufficient capacity to participate in a case conference call in May of 2012. In light of this, there is nothing to suggest that medically she was not able to initiate a call or make enquires to the Tribunal when the Tribunal did not call her on May 4 or to respond to the Tribunal’s numerous directions. The various correspondences from the Tribunal to the applicant were clear about the potential consequences of the applicant’s repeated failure to comply with its directives.
44The medical documents do not explain why the applicant was incapable of seeking assistance from the Human Rights Legal Support Centre in a diligent manner.
45Further, I find that the failure of Ms. Grant to have notice of this Request weighs in favour of finality.
Order
46The applicant’s Request for Reconsideration is denied.
Dated at Toronto, this 14th day of March, 2013.
“Signed by”
Geneviève Debané
Vice-chair