Eric Brazau v. Extreme Fitness, 2013 HRTO 859

Human Rights Tribunal of Ontario

B E T W E E N:

Eric Brazau Applicant

-and-

Extreme Fitness Respondent

RECONSIDERATION DECISION

Adjudicator: Naomi Overend Date: May 17, 2013 Citation: 2013 HRTO 859 Indexed as: Brazau v. Extreme Fitness

WRITTEN SUBMISSIONS

Eric Brazeau, Applicant (Self-represented) Extreme Fitness, Respondent (Paula Dow, Representative)

Introduction

1On December 3, 2012, the Tribunal issued its Decision, 2012 HRTO 2259, dismissing the Application on the basis that the applicant was deemed to have abandoned his Application. The basis for that Decision was that the applicant failed to appear on a summary hearing teleconference call, which took place on November 27, 2012.

2The applicant submitted a Request for Reconsideration on the basis that he had been in jail at the time of the teleconference, and remained there until he received bail on December 27, 2012. The respondent was asked to provide submissions, which it did. It opposes the applicant’s reconsideration request.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration is based on the applicant’s assertion that he was entitled to notice but, through no fault of his own, did not receive notice of the proceeding or a hearing.

DECISION

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

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.

5The Tribunal has issued Rules of Procedure, which govern 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). Rule 26 states 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.

6The 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.

7As 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.

8The respondent’s opposition to the applicant’s request for reconsideration is based on the fact that the applicant’s reason for “not being able to attend the call is connected to why we originally expelled Mr. Brazeau from our clubs.” However, at this stage, I have not heard submissions from the applicant about the relative merits of his Application. This was to have been addressed at the summary hearing, which he was unable to attend owing to his incarceration.

order

9I find that it is appropriate for me to exercise my discretion to allow the reconsideration. The Registrar will schedule a further one-hour summary hearing teleconference at which time the Tribunal will hear the oral submissions concerning whether this Application has no reasonable prospect of success.