Moyal v. Toronto (City), 2013 HRTO 623

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Moyal

Applicant

-and-

City of Toronto and Daniel Pang

Respondents

RECONSIDERATION DECISION

Adjudicator: David A. Wright

Date: April 15, 2013

Citation: 2013 HRTO 623

Indexed as: Moyal v. Toronto (City)

APPEARANCES

David Moyal, Applicant

Self-represented

City of Toronto, Respondent

Amy Murakami, Counsel

Daniel Pang, Respondent

Aaron Schwartz, Counsel

1This Application was dismissed as abandoned (see 2013 HRTO 75) after the applicant failed to disclose his arguably relevant documents after two Case Assessment Directions (“CAD”) directed him to do so. He says that he did not receive the first CAD, which was sent by e-mail. He says that he did not check his e-mail between the time the second CAD was issued and the dismissal of the Applications, as he and his spouse had a new baby and he had been engaged in preparing another application to the Tribunal.

2I have concluded that this Request for Reconsideration should be granted in the circumstances of this case, pursuant to Rule 26.5(d), on the basis that there are other factors that outweigh the public interest in the finality of tribunal decisions. I appreciate that this will be exceptionally frustrating for the respondents, who now face five applications from the applicant at the Tribunal, which have been delayed through requests for extensions and non-cooperation in setting dates by the applicant. However, in my view the balance must tilt in favour of the applicant in these particular circumstances.

3The background to this Request is as follows. There have been various difficulties in scheduling this hearing and requests for extensions. The applicant was not cooperative. The hearing was eventually scheduled in March 2012 for April 16 and 17, 2013.

4After the Application was filed, the applicant moved to Israel. He has his mail forwarded there. He provided his Israel address to the respondents and the Tribunal. He states that he has told the Tribunal that he prefers materials to be sent by regular mail to his Toronto address, which is forwarded to Israel by Canada Post, although he regularly communicates by e-mail. On November 28, 2012, the Tribunal ordered that all parties could communicate with him by e-mail.

5The deadline for filing arguably relevant documents was set for April 18, 2012. The applicant asked for an extension until August 2012. Due to an administrative error, the Tribunal never ruled on this request. The applicant, however, let the August date pass without disclosing his documents. The respondents raised the issue again, together with other issues, to which the applicant responded, but he did not disclose his documents. In a CAD dated November 29, 2012, the Tribunal directed the applicant to do so immediately. This CAD was sent by e-mail. The applicant says he did not receive it.

6On January 2, 2013, the applicant filed a further Application against Walmer Flats Property Management, Tribunal File No. 2013-13367-I. Mr. Pang owns this company. By CAD dated February 15, 2013, this Application was sent to summary hearing, and the respondent was not required to file a Response. The summary hearing has not yet been scheduled.

7On January 4, 2013, the Tribunal sent another CAD reminding the applicant to disclose his documents. When there was no response, the Applications were dismissed on January 15, 2013. I was not aware that the applicant had filed a further application.

8Reconsideration is only granted in exceptional circumstances: see Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14. Filing an Application with the Tribunal, which has no fees and in which there is no liability for costs, includes an obligation on applicants and respondents to follow the Tribunal’s rules and comply with its directions: Ouwroulis v. New Locomotion, 2009 HRTO 335.

9However, in my view, several factors tip in favour of a finding that the exceptional remedy of reconsideration should be granted in this case. First, the Applications were dismissed as abandoned over three months before the hearing. This is not a situation where shortly before the hearing, an applicant failed to heed an urgent warning to provide documents and witness statements as required by the rules, leading to the cancellation of an urgent hearing as in Lukusa v. Toronto Police Service, 2012 HRTO 2054. The cancellation of the hearing was well in advance, and while unfortunate, did not lead to the inconvenience and prejudice to the respondent, the Tribunal and other parties of a last-minute cancellation. Second, the Tribunal had delayed in responding to the applicant’s request for an extension as a result of an administrative error, for which I apologize to the parties. While the applicant should still have produced the documents even without prompting by the Tribunal by the extended date proposed, I can see how the Tribunal’s inaction could lead the applicant to conclude that the issue was not particularly important. Third, the applicant apparently did not receive the first CAD, and his failure to check his e-mail and learn about the second CAD over a one-week period was during the stressful period when his family had a newborn child of several weeks old. Given the applicant’s communication with the Tribunal on other issues, I am prepared to accept that he was not aware of the CADs. Fourth, the applicant has continually demonstrated a desire to pursue these Applications and had communicated with the Tribunal about many issues; this is not a case where the applicant disappeared and then reappeared after an Application was dismissed.

10Although the Applications will proceed, the applicant is expected to conduct himself differently to ensure that the Applications are resolved in an expeditious manner. Since the applicant lives overseas, and his mail is forwarded, the Tribunal and the respondents need a manner of communicating with him in a manner that is faster than regular mail that is forwarded to Israel from a Toronto address and less expensive than overseas courier. The applicant must check his e-mail daily. He must ensure that his mailbox is set so that e-mails from the Tribunal and the respondents are not placed into his junk mail folder. If the applicant is able to provide a fax number, that would be extremely helpful.

11The applicant must deliver to the respondents his arguably relevant documents and file with the Tribunal a Form 23 confirming that he has done so within two weeks of the date of this Case Assessment Direction. If he does not do so, the Application may be dismissed as abandoned with no further warnings.

12The Tribunal will hold a Case Management Conference Call on May 1, 2013 at 4:30 PM Toronto time. This will require the applicant to dial in using long distance using the 416 number as the Tribunal does not have a toll-free number available from overseas. The parties must be prepared during the call to: (i) set hearing dates; (ii) set dates for the exchange of witness statements and documents they will rely upon; (iii) make submissions on any outstanding case management issues that may arise. The call is peremptory to the applicant, which means that it will not be rescheduled at the applicant’s request unless there are truly exceptional circumstances. If the applicant does not attend the call, the Applications may be dismissed as abandoned. A Notice will follow from the Registrar’s Office.

ORDER

13The Tribunal makes the following Order:

1. The Request for Reconsideration is granted.

2. This Decision will be sent to the applicant by e-mail and by regular mail.

3. The applicant must check his e-mail daily for correspondence related to these cases. He must ensure that his mailbox is set so that e-mails from the Tribunal and the respondents are not placed into his junk mail folder.

4. The applicant must deliver to the respondents his arguably relevant documents and file with the Tribunal a Form 23 confirming that he has done so within two weeks of the date of this Case Assessment Direction. If he does not do so, the Application may be dismissed as abandoned with no further warnings.

5. The Tribunal will hold a Case Management Conference Call on May 1, 2013, at 4:30 PM Toronto time. The parties must be prepared during the call to: (i) set hearing dates; (ii) set dates for the exchange of witness statements and documents they will rely upon; (iii) make submissions on any outstanding case management issues that may arise. The call is peremptory to the applicant, which means that it will not be rescheduled at the applicant’s request unless there are truly exceptional circumstances. If the applicant does not attend the call, the Applications may be dismissed as abandoned.