Trevors v. Homestead Land Holdings Limited, 2013 HRTO 827

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gary Trevors

Applicant

-and-

Homestead Land Holdings Limited, Martin Woock, Jim Minnes Jeff Rychel and John Papini

Respondents

RECONSIDERATION DECISION

Adjudicator: Brian Cook Date: May 16, 2013 Citation: 2013 HRTO 827 Indexed as: Trevors v. Homestead Land Holdings Limited

WRITTEN SUBMISSIONS

Gary Trevors, Applicant Self-represented

Homestead Land Holdings Limited, Martin Wook, Jim Minnes, Jeff Rychel and John Papini, Respondents Donald Bayne, Counsel

Introduction

1The applicant seeks reconsideration of Decision 2013 HRTO 268, dated February 14, 2013. That Decision dismissed the applicant’s Applications as abandoned. The applicant asserts that he did not abandon the Applications. The respondents filed a Response to the applicant’s Request for Reconsideration, and oppose the Request.

Background

2The applicant initially filed an Application on November 17, 2011 alleging discrimination in employment because of disability. He filed a second Application on April 19, 2012, alleging that the respondents had reprised against him because of filing the first Application.

3Both Applications identified Cecil Norman, a licenced paralegal, as the applicant’s representative.

4The Tribunal scheduled a mediation session for June 5, 2012 in respect of the first Application. The parties attended but there was not a settlement.

5The respondents filed a Request for Summary Hearing. The Request was refused by the Tribunal and the applicant was not asked to make submissions.

6The Tribunal issued a Case Assessment Direction on June 29, 2012 concerning the respondent’s request that the two Applications be consolidated. The respondents had asked that they be consolidated. The Case Assessment Direction asked the applicant to make submissions on consolidation. No submissions were received. In Interim Decision 2012 HRTO 1447, the Tribunal consolidated the two Applications so that they would be processed and heard together.

7On August 2, 2012, the Tribunal issued a Notice of Confirmation of Hearing, setting a hearing for February 25, 2013. As with all previous communication, the Notice was sent to Mr. Norman, the applicant’s representative and not to the applicant directly.

8The Notice advised the parties of the disclosure obligations and the fact that the parties were to file documents and witness statements with each other and the Tribunal not later than January 11, 2013.

9The respondents filed these documents on January 7, 2013. Mr. Norman was copied. The applicant did not deliver and file his materials in accordance with the Notice.

10The Tribunal issued a Case Assessment Direction dated January 30, 2013 directing the applicant to file any documents he wished to rely on and any witness statements by February 6, 2013. The Case Assessment Direction stated that if the applicant failed to do so, the Applications could be dismissed as abandoned.

11On February 8, 2012, the respondents’ counsel wrote to the Tribunal, copied to Mr. Norman, asking about the status of the hearing as nothing had been heard from the applicant.

12On February 14, 2013, the Tribunal issued Decision 2013 HRTO 268. It dismissed the Applications as abandoned and cancelled the February 26, 2013 hearing.

13The Decision was sent to the respondents, Mr. Norman and also to the applicant at the address he provided when the Applications were initially filed. The copy sent to the applicant was returned as non-deliverable because the applicant had moved.

14On February 25, 2013, the Tribunal was copied on an email sent from Mr. Norman to the applicant. The email reads in part:

It seems your legal counsel at the Human Rights Legal Support Centre (HRLSC) did not notify the Human Rights Tribunal of Ontario and Homestead about your change of representation…

[T]he HRTO informed me over the phone that the Tribunal has neither received our letter advising them of your change of representation nor a letter from your legal counsel at the HRLSC establishing the order of representation. I am yet to resend a copy of our letter to the Tribunal for file.

15The email goes on to advise the applicant to file a Request for Reconsideration. The applicant filed the Request on March 26, 2013.

The Request for Reconsideration

16The applicant states that he had no intention of abandoning the Applications.

17The Request states the following:

1. The applicant believes that the documents the applicant intended to rely on at the hearing were sent on January 11, 2013 by regular mail to the applicant, the Tribunal and the respondents. He says he knows this because he received his copy in the mail.
2. He believes that on January 25, 2013, Mr. Norman notified the Tribunal that he no longer represented the applicant.
3. He did not receive the January 30, 2012 Case Assessment Direction and so did not know that his hearing documents had not been received and that the Applications might be dismissed as abandoned.
4. On February 11, 2013, he had a meeting with a lawyer at the Human Rights Legal Support Centre to discuss representation.
5. On February 20, 2013, he was told that the Centre was not going to represent him.
6. On February 25, 2013, he went to the Tribunal’s Hearing Centre to attend the scheduled hearing and learned that the hearing had been cancelled.
7. He contacted Mr. Norman and received the February 25, 2013 email from Mr. Norman quoted earlier.

18The respondents oppose the Request for Reconsideration. Counsel for the respondents states that all communications were sent using the contact information provided by the applicant when he filed the Applications. The respondents argue that if the applicant did not receive communications this happened only because he failed to update his contact information.

19The respondents state that the applicant has not produced the January 11, 2013 communication that he says he sent to the Tribunal and the respondent disclosing his hearing documents. The respondents argue that it is improbable that both communications would go astray.

20The applicant has since forwarded a package of documents under cover of a letter from Mr. Norman dated January 11, 2013, addressed to the Registrar and copied to the respondent. However, it appears that this package was not received by either the Tribunal or the respondents.

21The respondents note that standard communications from the Tribunal remind parties of the importance of letting the Tribunal know if contact information needs to be updated. The respondents note that the applicant failed to do this even though he knew, at the latest, by January 25, 2013 that Mr. Norman was no longer his representative. The respondents’ counsel notes that the explanation offered by the applicant implies that up to four communications to or from the applicant and/or his counsel went astray. He suggests that this is not likely or credible. The respondents also suggest that reconsideration would result in prejudice to the respondents. Counsel submits that the Application has resulted in personal and professional stress and upset and that it would be unfair to them to resurrect an Application that has been dismissed.

Conclusions

22Rule 26 of the Tribunal’s Rules of Procedure reads in part:

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.

23In this case, it appears that the applicant received notice of the hearing and in fact appeared at the Tribunal on the scheduled day. The Case Assessment Directions that identified that the Tribunal had not received the applicant’s hearing documents were sent to the applicant’s representative. It appears that the applicant was not aware of them or understood that his representative was dealing with all matters related to the Application.

24The Application was dismissed on the basis that the applicant had abandoned the Application. The Reconsideration Request makes clear that the applicant had not abandoned the Application and had no intention of doing so. Throughout the processing of the Application, all communication from the Tribunal was sent to Mr. Norman, who was identified as the applicant’s representative. The only communication that was sent directly to the applicant was the February 14, 2013 Decision dismissing the Application. The applicant did not receive the Decision because he had moved and it was returned as non-deliverable.

25There is no explanation for why the January 11, 2013 package of hearing documents apparently put together by Mr. Norman was not received by either the Tribunal or the respondents. A reasonable inference is that it was not sent.

26There is no explanation for why Mr. Norman failed to advise the Tribunal and the respondents at the point that he was no longer representing the applicant although it appears that he may have understood that the applicant was going to be represented by the Human Rights Legal Support Centre. Since the applicant was not in fact represented by the Centre, the Centre did not advise the Tribunal of their involvement or potential involvement.

27It is clear that the applicant failed to advise the Tribunal of his change of address. However, until the point that Mr. Norman no longer represented him that was not necessary as the Tribunal had contact information for the applicant’s representative and had not attempted to contact him directly. While the applicant should have informed the Tribunal and the respondents about his change of address, Mr. Norman should also have told the Tribunal and the respondents that he was no longer representing the applicant and he should have reminded the applicant of the importance of updating his information with the Tribunal and the respondents.

28There is no clear evidence about what exactly happened that led to the dismissal of the Application. However, the fact that the applicant appeared at the Tribunal’s Hearing Centre on the day of the scheduled hearing suggests that the applicant did not intend to abandon the Application. Based on the available information, it appears possible that the applicant in this case relied to his detriment on his representative.

29In Halton Community Credit Union Ltd. V. ICL Computers Canada (Ont. C.A.) [1985] O.J. No. 101, Arnup, J., speaking for the Court of Appeal said:

Undoubtedly counsel is the agent of the client for many purposes, including (in most cases) the power to make a binding settlement, but it is a principle of very long standing that the client is not to be placed irrevocably in jeopardy by reason of the neglect or inattention of his solicitor, if relief can be given on terms that protect his innocent adversary as to costs thrown away and as to the security of the legal position he has gained. There may be cases where the plaintiff has so changed his position that this is impossible.

30In this case, the respondents’ prejudice is limited to the fact that they had assumed that the Application was dismissed. While costs have been incurred they were limited by the fact that the hearing did not proceed. While the Application was dismissed, it was not dismissed based on any assessment of the merits of the Application but only on the basis that the applicant’s apparent failure to respond to the Tribunal’s directions led to the conclusion that the applicant had abandoned the Application.

31As the respondent notes, a failure to respond to directions from the Tribunal can have serious consequences, including dismissal of the Application. The respondents referred to Zablockine v. Cochrane Food Bank Inc., 2012 HRTO 2009, in which the Tribunal denied a Reconsideration Request where the Application had been dismissed, as in this case, because the applicant had not responded to a Case Assessment Direction directing the applicant to disclose her hearing documents and witness lists. In that case, the Vice-chair was satisfied that the applicant had received the Case Assessment Direction. At paragraph 14, the Vice-chair commented:

The applicant indicates in her Request for Reconsideration that she relies upon Rule 26.5(b). Rule 26(5)(b) refers specifically to a party not receiving notice of a proceeding or a hearing. In this particular case the issue is the applicant not receiving a CAD. However, not receiving a CAD in which the Tribunal indicates that it might dismiss an Application has as serious a consequence as not receiving a notice of a proceeding or a hearing. Under the circumstances, if I am satisfied that if the applicant did not receive the Tribunal’s September 12, 2012 CAD, through no fault of her own, this would be grounds for allowing her Request for Reconsideration pursuant to Rule 26.5(b) or under the broader criteria set out in 26.5(d).

In the case before me, it appears that the applicant did not receive the Tribunal’s Case Assessment Direction that advised that the applicant’s hearing disclosures had not been received. While it also appears that the applicant bears some responsibility for failing to keep his contact information up to date, in my view, the balance of factors establishes that it is appropriate for the Tribunal to reconsider the decision to dismiss the Application.

Personal Respondents

32In my view, it is also appropriate to address the respondents’ concerns about the fact that a number of individuals have been named as personal respondents. The Tribunal discourages the unnecessary naming of individuals as personal respondents and will remove individuals as personal respondents when it is appropriate to do so.

33The factors typically considered by the Tribunal when determining a request to remove a personal respondent are as follows:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
5. Would any prejudice be caused to any party as a result of removing the personal respondent?

Persaud v. Toronto District School Board, 2008 HRTO 31

34By May 17, 2013, the applicant may make submissions on the issue of whether the named individuals in the Application should be removed as respondents. The respondents may reply to those submissions within two weeks of receiving the applicant’s submissions, if any.

DECISION

35The Request to Reconsider Decision 2013 HRTO 268 is granted. The Tribunal will schedule a new hearing date.

36By May 28, 2013, the applicant may make submissions on the issue of whether the named individuals in the Application should be removed as respondents. The respondents may reply to those submissions within two weeks of receiving the applicant’s submissions, if any.