Jeannotte v. 1682298 Ontario Inc., 2013 HRTO 581

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William Jeannotte

Applicant

-and-

1682298 Ontario Inc. and Spearmint Rhino Consulting Worldwide, Inc.

Respondents

A N D B E T W E E N:

William Jeannotte

Applicant

-and-

1682298 Ontario Inc. o/a Spearmint Rhino Gentlemen’s Club

Respondent

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: April 9, 2013

Citation: 2013 HRTO 581

Indexed as: Jeannotte v. 1682298 Ontario Inc.

WRITTEN SUBMISSIONS

William Jeannotte, Applicant

Self-represented

1682298 Ontario Inc. and Spearmint Rhino Consulting Worldwide, Inc., Respondents

Daniel Lublin, Counsel

1This Decision addresses a Request for Reconsideration filed by the respondents in relation to the Tribunal’s Decision 2012 HRTO 1931, dated October 11, 2012, which found that the respondents had discriminated against the applicant in respect of employment because of disability contrary to s. 5(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and which further found that the respondent 1682298 Ontario Inc. had engaged in reprisal against the applicant contrary to s. 8 of the Code.

2The hearing in this matter originally was scheduled for March 26, 2012, but was adjourned to June 18, 2012 due to the applicant’s ill health. While then counsel for the respondents (“L.C.”) appeared at the hearing on March 26, 2012, and agreed to the June 18, 2012 date on behalf of his clients, neither counsel for the respondents nor the respondents themselves appeared for the hearing on June 18, 2012. The Application originally had identified an individual as a personal respondent, who appeared on June 18, 2012, but the applicant withdrew the Application as against that individual. As a result, I proceeded with the hearing on June 18, 2012 in the absence of the respondents and issued my Decision on October 11, 2012.

3On November 9, 2012, the respondents filed a Request for Reconsideration of the Tribunal’s Decision primarily on the basis that they had not been informed of the hearing in this matter by their former legal counsel. The applicant was invited to provide submissions in response to the Request for Reconsideration, which he did on November 19, 2012.

4Because the Request for Reconsideration raised an issue regarding the conduct of the respondents’ former counsel, the Tribunal directed that former legal counsel be given notice of the Request for Reconsideration and an opportunity to make submissions. Former legal counsel filed his submissions on December 21, 2012. On January 6, 2013, the applicant filed further submissions in response to the submissions of respondents’ former legal counsel.

5Section 45.7 of the Code provides as follows:

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.

6Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The Tribunal has issued rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008).

7The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

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.

8As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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.

9In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an Application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

10The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 of the Rules provides:

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.

11As a result, I need to determine whether the material filed by the respondents in support of their request for reconsideration satisfies any of the criteria set out in Rule 26.5. The respondents rely upon criteria (b), (c) and (d) identified in Rule 26.5.

12There is no dispute that former legal counsel (hereinafter “L.C.”) was retained by the respondents to represent them in relation to the Applications and that a representative of the respondents spoke with L.C. in early March 2012 and was aware of the original March 26, 2012 hearing date. What is asserted by the respondents is that their corporate representative had no further communication with L.C., and so was not aware that the March 26, 2012 hearing date had been adjourned due to the applicant’s ill health and that L.C. had agreed, on the respondents’ behalf, to the hearing being re-scheduled to June 18 and 19, 2012.

13There is also no dispute that the Tribunal’s Notice of Re-Scheduled Hearing dated March 28, 2012, confirming June 18 and 19, 2012 as the new hearing dates, was sent to L.C. as the respondents’ representative and not directly to the respondents. It is asserted by the respondents that L.C. never provided them a copy of the Notice of Re-Scheduled Hearing and so they continued to be unaware that a hearing in this matter was proceeding on June 18, 2012.

14There is no dispute that L.C. sent an e-mail to the Tribunal and the applicant on June 18, 2012 at 10:00 a.m., the morning of the hearing, which states as follows:

Due to irreconcileable (sic) client relationship difficulties, I am notifying you of my cessation of representation of all respondents in this matter. All addresses are current of the respondents, and the respondents are aware of and acknowldege (sic) my withdrawal. I understand Mr. Fenton will appear at the hearing on his own behalf. I am not aware of whether Spearmint Rhino and/or 1682298 Ontario Inc. will be represented by another representative. I have communicated this to all parties.

15In a declaration filed by the respondents’ human resources manager in support of the Request for Reconsideration, it is stated that until sometime in October 2012, it was this person’s understanding and belief that the respondents were still legally represented by L.C. with respect to the Applications and that he was handling the matter on the respondents’ behalf. It is stated that L.C. did not advise the respondents of his apparent withdrawal from representation. It is stated that, had the respondents known that L.C. was no longer prepared to represent them, they would have engaged other counsel on an urgent basis to seek an adjournment.

16I note that the statements made in this declaration are not consistent with what is set out in L.C.’s e-mail of June 18, 2012, in which he states that “the respondents are aware of and acknowledge my withdrawal” and further that he does not know whether the respondents “will be represented by another representative”. In this regard, I note that in her declaration, the respondents’ human resources manager identifies herself as “a principal point of contact” (emphasis added) between the respondents and L.C. She does not say that she was the only point of contact, nor does her declaration speak to what efforts the respondents made to ascertain from L.C. whether he communicated with anyone else in the respondents’ organization about either the June 18, 2012 hearing date or his withdrawal of representation. L.C. clearly states in his June 18, 2012 e-mail that the respondents were aware of and acknowledge his withdrawal, which suggests that he communicated about this with someone in the respondents’ organization.

17As noted above, the Tribunal directed that L.C. be given notice of the reconsideration request and an opportunity to make submissions. In his submissions, L.C. declined to speak to his communications with his former client, the respondents, on the basis that this would inevitably require disclosure of information protected by solicitor-client privilege and he had not received any waiver of confidentiality from the respondents. While L.C. did not say that he had requested a waiver of confidentiality from the respondents, neither did the respondents respond to L.C.’s submissions by waiving privilege so that L.C. could advise the Tribunal regarding whether and, if so, when and to whom in the respondents’ organization he had communicated regarding the June 18, 2012 hearing date and/or his withdrawal of representation.

18In his submissions, L.C. states:

I advised the Tribunal’s office of my impending withdrawal, and of my actual withdrawal, immediately. I did so both orally and in writing. I was told in April, 2012 by administration that an e-mail would go out to the Registrar and to the Tribunal adjudicator, as well as to the parties, of my actual withdrawal, and that my appearance on June 18, 2012 would not be necessary.

19The Tribunal does not have a record of any contact by L.C. with anyone at the Tribunal during the period from the original March 26, 2012 hearing date until receipt of L.C.’s June 18, 2012 e-mail. It is not Tribunal practice to accept oral advice regarding withdrawal of legal counsel, nor is it Tribunal practice to advise the adjudicator or the parties of counsel’s withdrawal on his behalf. Rather, Tribunal practice is to require counsel to provide notice of his withdrawal in writing and copied to the other parties. This is in accordance with Rule 1.15, which states that “a representative who ceases to represent a party in a proceeding before the Tribunal must notify the Tribunal and all parties, in writing, immediately”.

20So here is where I am left. The respondents’ human resources manager says that she was not aware of the June 18, 2012 hearing date or that L.C. had withdrawn his legal representation at any time prior to mid-October 2012. L.C. states in his June 18, 2012 e-mail that the respondents were aware of and acknowledged his withdrawal of representation, and may be represented by another representative. L.C. states that he spoke to someone at the Tribunal about either his impending or actual withdrawal in April 2012, after he was aware of the June 18, 2012 hearing date. While what L.C. asserts he was told by Tribunal staff is not consistent with Tribunal practice (or may simply have been misunderstood by him), L.C.’s submissions suggest that he had withdrawn, or was about to withdraw, his services as early as April 2012. The respondents have not waived solicitor-client privilege so as to allow L.C. to confirm whether he notified anyone in the respondents’ organization regarding either the June 18, 2012 hearing date and/or his withdrawal of legal representation, and if so, when and to whom he gave any such notification.

21This is the respondents’ reconsideration request, and they bear the onus of satisfying the Tribunal, to use the language of Rule 26.5(b), that they, “through no fault of [their] own, did not receive notice of the . . . hearing”.

22In light of the foregoing, I issued a Case Assessment Direction (“CAD”) dated March 11, 2013 requesting any further submissions from the respondents to address the matters set out above, and specifically to address:

a. Whether they have any explanation for the statement in the June 18, 2012 e-mail from L.C., which states that “the respondents are aware of and acknowledge my withdrawal”;

b. If the respondents are prepared to waive solicitor-client privilege regarding any communications between their former legal counsel, L.C., and themselves from and after the initial hearing date of March 26, 2012 regarding either the June 18, 2012 hearing date and/or his withdrawal of legal representation, any information or records in the possession of L.C. or the respondents as to whether L.C. notified anyone in the respondents’ organization regarding either the June 18, 2012 hearing date and/or his withdrawal of legal representation, and if so, when and to whom he gave any such notification;

c. If the respondents are not prepared to waive solicitor-client privilege, whether an adverse inference should be drawn by this Tribunal regarding the respondents’ knowledge of the June 18, 2012 hearing date and/or L.C.’s withdrawal of representation.

23The respondents’ submissions were filed on March 27, 2013. The respondents state that it is noteworthy that former counsel’s e-mail of June 18, 2012 was not copied to the respondents and does not say when he allegedly made the respondents aware of his withdrawal or how long that occurred before the scheduled hearing date. The respondents assert that former counsel’s e-mail was a self-serving attempt, written on the morning of the hearing, to justify his own absence that day. The respondents vigorously assert that no adverse inferences, statements of fact, or inconsistencies should or can be drawn from former counsel’s e-mail. The respondents note that former counsel’s June 18, 2012 e-mail was not filed in accordance with Rule 1.15, as it was not copied to the respondents, who were a party to the proceeding and at that time independent from legal counsel. The respondents reiterate that they were not aware of former counsel’s withdrawal nor were they aware of the re-scheduled hearing date, and that the inference that the declaration of the human resources manager is inconsistent with former counsel’s e-mail is inappropriate since little or no weight should be placed upon the language used by former counsel in that e-mail.

24With respect, I do not agree. Former counsel was not just the legal representative of the respondents on record with this Tribunal, but he also is an officer of the court governed by the Law Society’s Rules of Professional Conduct. I am being asked to give no credence to former counsel’s assertion that the respondents were aware of and acknowledged his withdrawal, and may have new representation at the June 18, 2012 hearing. The only conclusion that could be drawn if the statements in former counsel’s e-mails were disregarded by this Tribunal, as urged by the respondents, is that an officer of the court lied to the Tribunal in a written document. I simply do not accept this, and certainly not on the basis of the material before me.

25The declaration of the human resources manager speaks to her contact with former counsel, and alleges that she had no further contact with him after early March 2012 and was not aware of his withdrawal. She purports to state that former counsel did not communicate the new hearing dates or his withdrawal of representation with her “or anyone else at the respondents”, without providing the basis upon which she makes this assertion. In this regard, as stated above, it is noteworthy that the human resources manager identifies herself in the declaration as “a” principal point of contact between the respondents and former counsel, as opposed to “the” or “the only” point of contact. It also is noteworthy to me that, on the basis of her own declaration, the human resources manager had contact with former counsel as of early March 2012 and was aware of the original March 26, 2012 hearing date, yet apparently neither she nor anyone else at the respondents took any steps between March 26 and June 18, 2012 to inform themselves as to the status of the proceeding or what had occurred on the March 26, 2012 hearing date.

26While it is true that the June 18, 2012 e-mail on its face does not appear to have been copied to the respondents, this does not address the statement made by L.C. in that e-mail that the respondents were aware of and had acknowledged his withdrawal of representation. Further, while it also is true that L.C. does not state in this e-mail when the respondents were aware of and had acknowledged his withdrawal, this statement could only have been made if the respondents were aware of and had acknowledged his withdrawal by the time the e-mail was sent on June 18, 2012 at 10 a.m. at the very latest, and perhaps as early as April 2012. And yet no communication was received from the respondents on or before June 18, 2012 or at any time prior to the release of the Decision on October 11, 2012 regarding L.C.’s withdrawal of representation. I appreciate that the respondents take the position that this was because they were not aware of L.C.’s withdrawal. My point, however, is that the lack of any reference in L.C.’s e-mail regarding when the respondents allegedly were aware of and acknowledged his withdrawal does not assist the respondents with regard to the inconsistency between what is stated in L.C.’s e-mail and what is stated by the human resources manager in her declaration.

27At the end of the day, as stated above, it is the respondents’ onus on reconsideration to satisfy this Tribunal that they, through no fault of their own, did not receive notice of the hearing on June 18, 2012. In the circumstances and on the basis of the materials before me, I am not satisfied that the respondents did not receive notice of the June 18, 2012 hearing date and/or L.C.’s withdrawal of representation. Accordingly, I find pursuant to Rule 26.5(b) that I am not satisfied that the respondents, through no fault of their own, did not receive notice of the hearing on June 18, 2012.

28In my CAD, I also had asked the respondents whether they were prepared to waive solicitor-client privilege as to any communications between L.C. and the respondents from and after the initial hearing date of March 26, 2012 regarding either the June 18, 2012 hearing date and/or his withdrawal of legal representation. The respondents have declined to do so, on the basis that solicitor-client privilege is an important right at law and not one to be interfered with lightly and on the basis that the information and communication between L.C. and the respondents over the course of this matter was highly confidential and sensitive in nature. The respondents also assert that I should draw no adverse inference from their failure to waive solicitor-client privilege. In the circumstances, and given the inconsistencies that I have found on the basis of the material before me, it is not necessary for me to consider the respondents’ position on waiving solicitor-client privilege and I have not drawn any adverse inference from their failure to do so.

29The respondents further submit that the decision in this matter to proceed with the hearing on June 18, 2012 without the respondents’ participation is in conflict with other Tribunal decisions. The respondents rely upon Veltri v. 1804314 Ontario Inc., 2012 HRTO 701. In that case, the hearing was adjourned when the respondent did not appear. This decision was made on the basis that the respondent’s stated “representative” had not provided a Law Society number on the Response, and may not have been permitted to represent the respondent pursuant to Rule 1.14, which requires that a party’s representative must be “a person licensed by the Law Society of Upper Canada or . . . a person authorized to provide legal services in accordance with the Law Society Act and its regulations and by-laws”. Further, the adjudicator in Ventri expressed concern that the respondent may not have been receiving correspondence sent by the Tribunal to its “representative”, based upon the respondent’s failure to appear for mediation, failure to comply with disclosure requirements, failure to respond to a Case Assessment Direction issued by the Tribunal, and failure to appear at the hearing.

30In contrast, in the instant case, the respondents’ former representative is legal counsel licensed by the Law Society of Upper Canada. The respondents had appeared for mediation, had made disclosure in accordance with the Rules, and had appeared at the original hearing date on March 26, 2012. In these circumstances, there was no reason to believe that the respondents were not being made aware by their former counsel of correspondence being sent by the Tribunal to the parties, including notice of pending hearing dates. Further, as discussed at length above, on the morning of the hearing, former counsel sent an e-mail to the Tribunal advising that the respondents were aware of and had acknowledged his withdrawal and may be represented by new counsel at the re-scheduled hearing date. As a result, contrary to the circumstances in Ventri, there was no reason in the instant case to believe that the respondents had not been notified by their former counsel regarding the June 18, 2012 hearing date, so as to support adjourning the matter on the Tribunal’s own motion.

31I note that Rule 26.5(c) requires that the decision or order which is the subject of a reconsideration request be “in conflict with established jurisprudence or Tribunal procedure” and that the proposed reconsideration involve a matter of general or public importance. In my view, the respondents have not demonstrated that the Decision in this matter is in conflict with either established jurisprudence or Tribunal procedure.

32The respondents further assert that factors exist that outweigh the public interest in the finality of Tribunal decisions, within the meaning of Rule 26.5(d). They assert first that they should not be penalized because their former counsel withdrew his services on the morning of the hearing without advising them first and without appearing before the Tribunal to at least request an adjournment. The respondents submit that they ought to have been given an opportunity to know about the hearing and to arrange for alternate representation. For all of the reasons already canvassed above, I am not satisfied that the respondents were not aware of the June 18, 2012 hearing and/or were not aware of L.C.’s withdrawal of representation. Accordingly, I do not accept that the respondents are being penalized on the basis of their former counsel’s actions. In this regard, I note again that the respondents’ human resources manager was aware in early March 2012 of the original March 26, 2012 hearing date, but according to her declaration took no steps to follow up with L.C. regarding what occurred on that date at any time over the next three months leading up to the June 18, 2012 hearing date.

33The respondents rely upon this Tribunal’s decision in Taranco v. Michedes, 2010 HRTO 1439, which granted reconsideration when a complaint was dismissed due to a failure to file affidavit evidence as directed by the Tribunal. This decision found that the complainant, who was unrepresented, relied to his detriment on erroneous advice given to him by legal counsel for the Ontario Human Rights Commission. In contrast, in the instant case, the materials before me do not satisfy me that L.C. gave the respondents erroneous advice that caused them not to attend the June 18, 2012 hearing. Rather, if the statements in L.C.’s e-mail are to be believed, the respondents were aware of and acknowledged L.C.’s withdrawal of representation, yet took no steps to either attend the June 18, 2012 hearing, arrange for new representation, or communicate in any manner with the Tribunal regarding this matter prior to issuance of the Decision on October 11, 2012. Or, if the human resources manager is to be believed, she was aware of the original March 26, 2012 hearing date and did nothing to follow up on the status of the matter, or follow up on what had occurred at the March 26, 2012 hearing, or otherwise communicate with L.C. at any time over the next six and a half months before she received the Decision.

34The respondents next submit that there has been a breach of procedural fairness in this case and a violation of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which justifies granting reconsideration. The respondent relies upon this Tribunal’s decision in Bard v. Heenan Blaikie, 2010 HRTO 2362, which granted reconsideration where an applicant was found not to have received a notice of hearing, due to her failure to provide the Tribunal with a current mailing address. Even though it could not be found that the applicant’s failure to receive notice of the hearing was “through no fault of her own”, reconsideration was still granted on the basis that it would be unfair not to give the applicant an opportunity to be heard. I note that one factor relied upon in the Bard decision is that the applicant had indicated in her Application that she preferred to communicate with the Tribunal by e-mail, and she responded promptly to communications sent to her by e-mail. However, the notice of hearing had been sent to her by mail and not by e-mail.

35In contrast, in the instant case, I already have found that I am not satisfied that the respondents did not receive notice of the June 18, 2012 hearing date. This is not a situation where notice of the hearing was sent to the respondents at an incorrect mailing address. This is a situation where counsel retained by the respondents and indicated as their representative in the Response on record with the Tribunal, appeared at the March 26, 2012 hearing as the respondents’ representative and agreed to an adjournment of the matter to June 18, 2012. The Notice of Hearing was sent to the respondents’ then legal counsel confirming the June 18, 2012 hearing date. Then, at some later point, L.C. withdrew as respondents’ counsel and on June 18, 2012 advised the Tribunal in writing that the respondents were aware of and had acknowledged his withdrawal of representation. There is no assertion made that L.C. did not agree to the June 18, 2012 hearing date as the respondents’ representative or receive confirmation of that hearing date while still the respondents’ representative. Rather, the assertion by the respondents is that their legal counsel on record with the Tribunal as their representative, did not advise them of the June 18, 2012 hearing date. For all of the reasons already stated above, I am not satisfied that this is the case.

36The respondents also rely upon this Tribunal’s decision in Magda v. Jaroszynski, 2010 HRTO 2194, in which reconsideration was granted in circumstances where the applicant was not able to attend the hearing due to a serious medical condition, whereby she had a seizure and was found unconscious and taken to the hospital by ambulance on the day of the hearing and was admitted to hospital for approximately six days. In those exceptional circumstances, it was found that it would not be fair or just to deprive the applicant of her ability to fully participate in the only process available to her to seek redress for what she believed to be a violation of her fundamental rights.

37In contrast, in the instant case, there is no suggestion in the materials before me that the respondents were unable to attend or participate in the hearing due to any serious medical condition. Rather, they simply assert that their former counsel failed to inform them of the re-scheduled June 18, 2012 hearing date. As already canvassed above, I am not satisfied that this is the case.

38Accordingly, in the circumstances of the instant case, I do not find that there was any breach of procedural fairness or the SPPA. Procedural fairness provides an opportunity to know the case against a party and to respond. While the respondents did not appear at or participate in the June 18, 2012 hearing, I am not satisfied that they were denied the opportunity to appear and participate.

39Further, as stated in my Decision at para. 7, I proceeded with the hearing in the respondents’ absence in accordance with my authority pursuant to s. 7(1) of the SPPA. Section 7(1) of the SPPA states:

Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding.

40Section 6 of the SPPA sets out the requirements for notice of an oral hearing, which include: a reference to the statutory authority under which the hearing will be held; a statement of the time, place and purpose of the hearing; and a statement that if the party notified does not attend the hearing, the tribunal may proceed in the party’s absence and the party will not be entitled to any further notice in the proceeding. For the reasons stated at paragraphs 4 to 9 of the Decision, I found that the respondents had received proper notice of the hearing, on the basis that their then legal counsel had agreed to the June 18, 2012 hearing date and had received the Notice of Hearing shortly afterwards and before any indication that he had withdrawn as the respondents’ representative. For the reasons articulated above, I find that the respondents have not discharged their onus on reconsideration to satisfy me otherwise. Accordingly, I find that the hearing proceeded in accordance with the Tribunal’s authority under the SPPA and hence there was no violation of that Act.

41Finally, the respondents assert that they have suffered enormous prejudice by the Tribunal’s decision to proceed with the hearing in their absence. They note that they had appeared at the March 26, 2012 hearing ready to proceed, but agreed to adjourn the hearing to another date given the state of the applicant’s health. They submit that they should not be penalized for having granted this indulgence. They further submit that no prejudice would be caused to the applicant by granting reconsideration and holding another hearing, that could not be addressed through the Tribunal’s remedial powers.

42I do not accept that the respondents have suffered prejudice as a result of their failure to appear at the June 18, 2012 hearing that is different than the consequences suffered by any party who fails to attend a hearing before this Tribunal. In the case of an applicant who fails to appear, the Application will be dismissed. In the case of a respondent who fails to appear, the hearing will proceed in the respondent’s absence, with the risk that findings may be made and remedies awarded that are adverse to the respondent’s interests. That is what happened here. In order to justify granting the respondents’ reconsideration request and ordering another hearing, I would need to be satisfied that there were extraordinary circumstances that explained their failure to appear, and that outweigh the public interest in the finality of a Tribunal decision. As I have repeatedly said, I am not so satisfied.

43With regard to the notion that the respondents granted an indulgence to the applicant by not insisting on proceeding with the hearing on March 26, 2012, the applicant was visibly ill on that date, was having his fingers amputated in the near future, was on painkillers, and was experiencing a lot of pain. I granted the adjournment on consent when the applicant’s condition did not improve even after allowing him some time to rest. There was no serious issue about the hearing being able to proceed on that date, and L.C. properly consented to the adjournment in accordance with his professional obligations and responsibilities. I do not regard that as an indulgence to the applicant.

44Further, it is not correct to assert that the applicant would experience no prejudice if another hearing were to be held. The events at issue in this matter date back over three years to the fall of 2009 and early 2010. The hearing was held almost a year ago. If another hearing were to be held, memories undoubtedly will have faded and any witnesses the applicant may feel that he needs to call to rebut the respondents’ evidence may no longer be available. Also the applicant already had had to appear before this Tribunal at a hearing and had to fully testify to the events at issue, which from my observation was a stressful experience for him, particularly in light of the state of his health. On the other hand, I am not satisfied that the respondents did not already have the opportunity to appear and present evidence at a hearing before this Tribunal.

45Accordingly, it is my view that there are no extraordinary circumstances in this case that would outweigh the public interest in the finality of Tribunal decisions.

46For all of these reasons, the respondents’ Request for Reconsideration is denied.

47Finally, the applicant has requested clarification as to the proper corporate name of the respondents. As stated in Taranco v. Michedes (a.k.a. Michaelides), 2011 HRTO 1188, this Tribunal has the power to treat such a request as a request for reconsideration by the applicant, and to exercise our power pursuant to Rule 25 to correct “a typographical error, error of calculation or similar error”. While a request for reconsideration and a request to correct an error must be made within 30 days under the Rules, this Tribunal has the discretion to extend such time periods pursuant to Rule 1.7(a), and I exercise my discretion to do so.

48In the Response to the applicant’s original Application dated December 28, 2009, the respondents who were responding to the Application were identified as “1682298 Ontario Inc.” and “Spearmint Rhino Consulting Worldwide Inc. LLC”. However, I note from the declaration filed in support of the reconsideration request that the proper name of the latter respondent is set out as “Spearmint Rhino Consulting Worldwide, Inc.”, which is the same name as listed on a record filed by the applicant under entity number C3159296.

49In my CAD dated March 11, 2013, I requested clarification from the respondents as to the proper corporate name of this respondent. The respondents have advised that the proper corporate name is “Spearmint Rhino Consulting Worldwide, Inc.”

50Accordingly, the title of proceeding has been amended as the correction of a clerical error pursuant to Rule 25 and the Order set out in my Decision dated October 11, 2012 applies to and is enforceable against Spearmint Rhino Consulting Worldwide, Inc.

ORDER

51For all of these reasons, I make the following order:

a. The respondents’ Request for Reconsideration is denied; and

b. The title of proceeding is corrected to name Spearmint Rhino Consulting Worldwide, Inc. as the party respondent and the Order set out in my Decision dated October 11, 2012 applies to and is enforceable against Spearmint Rhino Consulting Worldwide, Inc.