O’Brien v. Organic Works Inc., 2013 HRTO 5

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wendel O’Brien Applicant

-and-

Organic Works Inc. o/a Organic Works Bakery and Peter Cuddy Respondents

RECONSIDERATION decision

Adjudicator: Kathleen Martin Date: January 3, 2013 Citation: 2013 HRTO 5 Indexed as: O’Brien v. Organic Works Inc.

Written SUBMISSIONS

Wendel O’Brien, Applicant ) Sharmaine Hall and ) Melissa Mark, Counsel

Organic Works Inc. o/a ) Organic Works Bakery and ) Phillip Morrissey, Counsel Peter Cuddy, Respondents )

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”), filed May 27, 2010, alleging discrimination in employment on the basis of disability. The respondents did not respond to the Application and the Application proceeded to hearing. On March 5, 2012, the Tribunal issued a Decision, 2012 HRTO 457, finding that the applicant was discriminated against on the basis of disability. The respondents were found jointly and severally liable for the violations found and ordered to pay $13,000 in compensation for injury to dignity, feelings and self-respect, and lost wages of $6,273.75, along with interest.

2On April 10, 2012, the respondents sought reconsideration of the Decision on the basis that they had not received notice.

3On May 28, 2012, the Tribunal directed the applicant to file a response and the respondents a reply. Upon a review of the submissions, the Tribunal issued a further Case Assessment Direction on August 3, 2012 providing additional material from the file to the parties including copies of courier slips confirming delivery of various correspondence and decisions to the respondents and provided a further opportunity to the parties to file submissions. An extension was sought by the respondents and granted. The respondents and applicant have now filed further submissions.

4I have determined that it is not appropriate to reconsider this Decision. My reasons follow.

BACKGROUND

5The background to the hearing of this Application is set out in the Decision and the record of material in the file.

6The applicant alleged that he had been discriminated against in his employment with Organic Works Bakery on the basis of disability. The individual respondent, Peter Cuddy, is president of Organic Works.

7On July 22, 2010, the Tribunal issued a Notice of Application and delivered it to each respondent by regular mail at the address provided by the Applicant. The respondents did not file a Response and the Tribunal’s correspondence was not returned.

8The Tribunal issued an Interim Decision, 2010 HRTO 2116, dated October 20, 2010, which warned the respondents of the possible implications for failing to file a response. The Interim Decision was mailed and couriered to the respondents (Organic Works Inc. Organic Works Bakery Attn: Peter Cuddy). The single couriered package was signed for at the address for the respondents provided by the applicant. The address is the same address listed on the organization respondent’s website. The package sent by regular mail was not returned.

9The Tribunal issued a further Interim Decision, 2011 HRTO 101, dated January 13, 2011. In that decision, I found that the respondents received notice of the Application and the earlier decision directing the respondents to file its response. In addition, I found that the respondents refused or have chosen not to participate in the proceeding. I issued a number of orders, including that the respondents are deemed to have accepted all of the allegations set out in the Application, and the respondents are deemed to have waived all rights to notice or participation in these proceedings. This Interim Decision was sent by courier and mail to the organization and personal respondent. The couriered packages were signed for at Organic Works and the mailed packages were not returned.

10Notwithstanding my order that the respondents were deemed to have waived all rights to notice or participation in the proceeding, the Tribunal sent a copy of the subsequent hearing notice and copies of any Tribunal decisions and case assessment directions to the respondents.

11On March 4, 2011, the Tribunal issued a Case Assessment Direction seeking submissions from the applicant as to his reasons for seeking an in person hearing. A single copy of this CAD was sent by courier and mail to the respondents (addressed to Organic Works Inc. o/a Organic Works Bakery c/o Peter Cuddy). The couriered package was signed for at Organic Works and the mailed package was not returned.

12Because the proceeding was undefended, on April 13, 2011, the Tribunal issued a hearing notice indicating that the hearing was scheduled for June 3, 2011 by conference call and providing call-in details. A copy of the Notice was sent to the Organic Works Inc. o/a Organic Works Bakery c/o Peter Cuddy at the address for the corporate respondent. The Notice was not returned. On June 3, 2011, the hearing took place.

13On June 13, 2011, the Tribunal received a voice mail message from Peter Cuddy indicating that he had missed the hearing on June 3, 2011, and asking that the HRTO contact him. On June 14, 2011, the Registrar wrote to Mr. Cuddy stating that the hearing was held and concluded on June 3, 2011 and that a decision in the Application is pending.

14On March 5, 2012, the Tribunal issued the Decision.

15On March 19, 2012, the Tribunal received correspondence from the respondents indicating they wished to seek reconsideration of the Decision and seeking copies of the material referred to in the Decision.

16On March 20, 2012, the Tribunal delivered to the respondents copies of the Notice of Application, the decisions and CAD’s, the correspondence sent to the Tribunal from the applicant, the hearing notice and the Tribunal’s correspondence of June 14, 2011.

17On April 4, 2012, the respondents filed the Request for Reconsideration. In their Request, the respondents confirm that Mr. Cuddy is president of Organic Works and that at all material times, the company was located at the address provided by the applicant and used by the Tribunal in its mailings and deliveries. The respondents acknowledge receipt of the Interim Decision dated October 20, 2010 and the hearing notice but state that neither was brought to the attention of Mr. Cuddy until after the hearing date. The respondents further state that Mr. Cuddy has “no really good explanation as to what happened to the material” and that “obviously the processes in place to receive, monitor and respond to material of this nature were not in place”. The respondents further state that the bakery is a small struggling business, which is understaffed and that the only true management personnel is Mr. Cuddy who is often absent in order to market, promote and attempt to generate business. Aside from the issue of notice, the respondents claim that the factual findings of the Tribunal are false and to allow the decision to stand would be an injustice. In this respect, the respondents highlight certain factual inaccuracies and reference evidence they would call to refute the findings made.

18On May 28, 2012 and August 3, 2012, the Tribunal sought further submissions from the parties on the issue of notice only and provided further mailing and courier records from the processing of the Application

19In their subsequent submissions, the respondents acknowledge that the decisions and Case Assessment Directions were couriered and signed for at Organic Works. However, the respondents state that three of these decisions (October 20, 2010; March 4, 2011; and January 13, 2011) were sent to Organic Works c/o Peter Cuddy and that service to the corporate entity is not service to Mr. Cuddy. The respondents also submit that the staff who received the correspondence did not bring the documents to the attention of Mr. Cuddy and that one of the employees who signed, a retail and packaging manager, was not a person who was supposed to accept deliveries of this nature although no explanation is provided as to why the employee signed for the package.

20The applicant opposes reconsideration on the basis that the respondents have received notice of the proceeding and that the respondents have not established that there are compelling circumstances that warrant granting the extraordinary remedy that they are seeking.

DECISION

21Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request it to reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, 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.

22It 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.

23As 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.

24On the basis of the material before me, I am satisfied that this is not an appropriate case for reconsideration. While absence of notice may be a valid ground for reconsideration, I am satisfied that the respondents had notice of the proceeding. If the personal respondent did not see the notices as he claims it was due to his own actions or inactions which do not justify reconsidering the final Decision on the basis of notice.

25The Notice of Application was delivered by regular mail to the respondents at their then address (as confirmed by the respondents) and was not returned. While the respondents state that they never received it, I find this somewhat incredible given that the Tribunal’s file reflects that a separate mailing went to each of the respondents and neither was returned.

26However, even if there was a problem with the delivery of the original Notice, I am satisfied that the respondents received notice of the proceeding through the subsequent delivery of the various decisions and case assessment directions and the hearing notice, all of which is detailed in paragraphs 8 through 12 above.

27I find it notable that a significant number of documents have been delivered to the respondents (five mailings and three couriered documents). None of these documents (either the Notice or any of the decisions) were returned to the Tribunal as undeliverable. Given the sheer number of materials delivered and the fact that all of the decisions and case assessment directions were signed for at Organic Works I find the respondents’ assertion that they failed to receive notice to be incredible.

28I have considered the argument made by the respondents that service to the organization respondent is not service to the individual. However, in this case, when I consider all of the circumstances, it is apparent that both respondents had effective notice of the proceeding. As noted above, the original Notice and the January 13, 2011 Interim Decision (which included a detailed history of the proceeding and outlined the consequences of not responding) were delivered to both respondents (i.e. sent to the same address by way of two separate mailings with the latter Interim Decision being signed for as having been received). Further, Mr. Cuddy clearly received the hearing notice (even though it was addressed to the organization respondent “c/o Peter Cuddy”) as he called the Tribunal about the hearing albeit after the fact.

29It appears that the real issue regarding notice in this case (if the respondents did in fact not become aware of the proceeding) pertains to the inadequate procedures in place at the respondents’ place of business for receiving documents and the claim that the organization respondent’s employees failed to bring the documents signed for to the attention of Mr. Cuddy as president. While it is unfortunate that the respondents did not have those procedures in place, I do not find that this deficiency supports a conclusion that the respondents did not receive notice of the proceeding. The respondents were provided notice in accordance with the Tribunal’s Rules (see Rule 1.22). Further, the Tribunal’s Rule 26.5 (b) makes it clear that while absence of notice can be a basis for reconsideration it is qualified by the requirement that it be “through no fault of its own”. In this case, it is clear that if the respondents did not become aware of the proceeding it is entirely as a result of their own actions or inactions by having inadequate procedures in place. As the respondents themselves stated there is “really no good explanation” as to what happened to the material.

30I find that this case is distinguishable from Gothard v. Gallagher, 2011 HRTO 1776 relied on by the respondents. In that case, the Tribunal accepted at para. 11 that the presumption that a package was successfully delivered by regular mail may be rebutted by evidence that it was not received. In contrast, in this case, the respondent acknowledges or does not dispute that a number of packages were signed for at its proper address. I find this supports a conclusion that the package was successfully delivered.

31The respondents also request reconsideration on the basis that they have evidence to refute certain findings made in the Decision. Rule 26.5(a) allows for reconsideration of a Decision where there are “new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier”. Even assuming that this evidence could be determinative of the case, given my findings above on notice I am satisfied that these new facts and evidence could have been reasonably obtained earlier given that the respondents had notice of the proceeding and could have chosen to participate and present this evidence. I do not believe it is appropriate to allow reconsideration to reweigh and rehear evidence in these circumstances.

32Reconsideration is a discretionary remedy which the Tribunal will only exercise where there are compelling and extraordinary circumstances that outweigh the public interest in the finality of decisions. In all of the circumstances, the respondents have not satisfied me that they fall within Rule 26.5 (a), (b) and/or that there are compelling and/or extraordinary circumstances that outweigh the public interest in the finality of the decision pursuant to Rule 26.5(d).

33The Request for reconsideration is denied.

Dated at Toronto, this 3rd day of January, 2013.

”signed by”

Kathleen Martin

Vice-chair

CORRECTION: The decision released on January 3, 2013 had an incorrect name for the corporate respondent. The name is corrected to “Organic Works Inc. o/a Organic Works Bakery”.