Searles v. Denis Brooks Enterprise, 2013 HRTO 976

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shawn Searles

Applicant

-and-

Denis Brooks Enterprise

Respondent

RECONSIDERATION DECISION

Adjudicator: David A. Wright

Date: May 31, 2013

Citation: 2013 HRTO 976

Indexed as: Searles v. Denis Brooks Enterprise

WRITTEN SUBMISSIONS

Shawn Searles, Applicant

Jamie Lynne McGinnis, Counsel

INTRODUCTION

1This Application was administratively closed by the Registrar as not accepted for filing after the applicant failed to respond to a Notice of Incomplete Application and Notice of Intent to Dismiss. The applicant alleges that his failure to do so stems from an inadvertent error he made in writing his postal code and seeks reconsideration. The Request for Reconsideration is denied. The exceptional remedy of reconsideration is unnecessary. There has been no final decision on the issues raised, since the Application was never accepted for processing. To pursue his arguments under the Tribunal’s process, he should file a new Application, not a Request for Reconsideration.

BACKGROUND

2The applicant did not include the name of a respondent in his Application. The Application was also filed more than one year after the last alleged event, although it contained no information about why the Application was late. The Application was incomplete and could not be processed because it did not identify a respondent.

3Rules 6.4 and 6.5 deal with incomplete applications. They read as follows:

6.4 Upon receiving an Application, the Tribunal will determine whether it complies sufficiently with these Rules to allow it to be processed. An Application filed under Rule 6.1 that is not sufficiently complete:

a) may be sent back to the Applicant with an explanation as to how the Application is incomplete;

b) may be re-submitted not later than 20 days after the date that the Application was sent back; and

c) may be closed as not accepted, pursuant to Rule 5.3, if it is not completed.

6.5 If the Tribunal determines a re-submitted Application can be processed, it will be dealt with as if complete on the day it was originally filed with the Tribunal for the purposes of s. 34(1).

4Under Rule 6.4, the Tribunal issued a Notice of Incomplete Application, together with a Notice of Intent to Dismiss. This was sent to the address provided by the applicant, and then resent as it was returned because it did not have the proper post office box number. The applicant states that he did not receive it. It gave the applicant a deadline for completing his Application.

5When the applicant did not respond, the file was closed by letter pursuant to Rule 6.4 (c) and the Application was returned to the Applicant, because the applicant had failed to provide the name or mailing address for the respondent and it could not be processed. In such circumstances, the Application is considered never to have been filed. There is no bar to the applicant filing again and no final decision on the Application. The only consequence for the applicant is that he is unable to rely upon Rule 6.5 to have the Application considered filed on the day it was received. The Application was not timely at the time it was received, so in either case, he will have to argue good faith. He will have the opportunity in his new Application to explain all the circumstances that led to the delay, including the error in the postal code that meant that he allegedly failed to receive the Tribunal’s notice.

6The applicant argues that if a new Application is filed now the delay will be longer and he “should be given an opportunity to prove” that any delay was incurred in good faith. He has not lost the opportunity to show that the delay was incurred in good faith. In a new Application, he can argue good faith and that the new Application falls within the Tribunal’s jurisdiction on the basis of s. 34(2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). He can explain the history of the Application that was closed as incomplete, and explain all the reasons for the delay, including the events that led that the Tribunal’s file being closed as incomplete. The issue will be whether all these facts, both the delay before the incomplete Application was filed, and that after it was filed, amount to good faith. There is no need for a Request for Reconsideration to be filed to do so.

DECISION

7The applicant submits the closing of the file by the Registrar as incomplete is a “decision” within the meaning of s. 45.7 of the Code and a “final decision” subject to reconsideration within the meaning of Rule 26.1. I will assume, without deciding, that reconsideration is available in these circumstances.

8Rule 26.5 reads as follows:

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.

9The applicant relies upon Rule 26.5 (a), arguing that there are new facts that could potentially be determinative of the case, namely that the applicant made an error in his postal code.

10This is not an appropriate case to grant the exceptional and discretionary remedy of reconsideration. As explained above, reconsideration would serve no practical purpose. The applicant can make the same arguments if he files a new Application, arguing that the delay because of the failure to properly file this Application was incurred in good faith, as was the delay in filing it past the one-year period. This is the normal approach when an Application is not accepted under Rule 6.4(c), and there is no reason to depart from it in these circumstances. There are no facts that could be determinative of the case, as the case has not been finally determined and the applicant can make all the relevant arguments in a new Application.

11The Request for Reconsideration is dismissed.