Galal v. Lom Nava Co-op, 2014 HRTO 1017

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mahmoud Ashraf Galal

Applicant

-and-

Lom Nava Co-op

Respondent

RECONSIDERATION DECISION

Adjudicator: Alison Renton

Date: July 11, 2014

Citation: 2014 HRTO 1017

Indexed as: Galal v. Lom Nava Co-op

WRITTEN SUBMISSIONS

Mahmoud Ashraf Galal, Applicant

Self-represented

1In a Decision 2014 HRTO 310 (“the Decision”), the Tribunal dismissed the Application as abandoned when the applicant failed to call into a teleconference hearing (“the hearing”) that had been scheduled for March 3, 2014, and failed to otherwise communicate with the Tribunal that he was not able to participate in the hearing.

2On May 14, 2014, the applicant forwarded by email a Request for Reconsideration, Form 20 (“the Request”) that he asserts he emailed to the Tribunal on March 26, 2014. Neither the Tribunal nor the respondent received the March 26 email before this date. The applicant also provided an email chain to and from the Tribunal once he received the Decision with explanations as to why he missed the hearing. The Tribunal directed him to file a Request on the Form 20. On his Request, the applicant states that he was in pain and went to a pain clinic to receive injections in his back which caused him to forget the March 3, 2014 hearing date. He also submitted that he was not able to get legal help from “your legal dep[artment] because they think it has no chance to win because it is [a] summary hearing”.

3By letter dated May 20, 2014, the Tribunal requested the respondent to provide written submissions on the applicant’s Request. The respondent subsequently filed submissions. In its submissions, the respondent submits, amongst other positions taken, that the Request is untimely.

4The Tribunal issued a Case Assessment Direction on June 11, 2014 (“the CAD”) directing the applicant to file medical documentation pertaining to the explanation he provided on his Request by June 27, 2014 with a copy to the respondent’s counsel. The Tribunal stated that the medical documentation should clearly set out not just that the applicant was receiving medical treatment for his back, but also that the injections caused him to forget the hearing date.

5The applicant filed material on June 24, 2014 in response to the Tribunal’s CAD. He submitted that the pain caused him to forget the hearing date, not the injections, and he submitted a letter from Dr. Pollett, in support of his Request. The spelling of the applicant’s first and last names was a little different on Dr. Pollett’s letter, but the Tribunal accepts that this is about the applicant.

law and analysis

6Rule 26.1 of the Tribunal’s Rules of Procedure states that any party may request reconsideration of a final decision within 30 days from the date of the decision.

7Rule 26.5 sets out the limited circumstances in which reconsideration may be granted:

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.

8Reconsideration 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. 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.

9Without determining whether or not the applicant’s Request is timely, the applicant’s Request is dismissed for the reasons set out below.

10The applicant marked off Rule 26.5(d) as the basis for his Request, which states that the Tribunal can consider other factors which, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions. On the Request form, he provided several submissions in support of his Request. The first was “I was in great pain & went to the pain clinick [sic] to get injections in my body that caused me to forget the hearing date”. The second was about not being able to get legal help from “your legal dep[artment]”.

11In his email dated June 24, to which he attached Dr. Pollett’s letter, the applicant wrote that “It [Dr. Pollett’s letter] doesn’t specify anything regarding the injection causes me to forget the hearing date because the injection never affect [sic] the memory. What I said on my Form 20 is the pain wh[ich] caused me to forget not the injection itself”. This is a different explanation than the explanation that was provided on the Request itself which appeared to assert that the injections, not the pain, caused the applicant to forget the hearing date. It is also a different explanation from that he provided to the Tribunal in his March 24 email in which he claims that, “The reasons for that [the reconsideration request] I was in a pain cli[ni]c trying to control my pain which caused me to forg[e]t about the hearing date”. It is different, again, from the email that he sent to the Tribunal on March 19 in which he wrote, “…I was not able to attend because I forgot about the date and I had a thought that the hearing was [o]n mar. 18”.

12Dr. Pollett’s letter is not responsive to the issues identified in the June CAD, perhaps because it is dated May 30, 2014, before the June CAD was issued by the Tribunal. The applicant is correct in asserting that Dr. Pollett’s letter does not address his apparent memory loss about the hearing date. Instead, Dr. Pollett’s letter addresses the applicant’s ongoing medical condition and is written in response to a May 7 letter from Service Canada pertaining to the applicant’s request for Canada Pension Disability benefits. It states, amongst other observations, that the applicant has chronic neck and shoulder pain, and that he obtains approximately 60% relief with his medications and 70% relief, for several days, with the nerve blocks. She explains that the reason why the applicant attends the clinic weekly or biweekly, is for the nerve blocks. She does not list the date of the visits. She does not provide any observations or opinion about the applicant missing the hearing because of pain, the injections, or any other reason.

13The applicant has provided no medical documentation in support of his claim that either the injections caused him to forget about the hearing or the pain itself caused him to forget the hearing.

14If the applicant simply forgot about the date or mixed the date up, which he appears to suggest in his March 18 email to the Tribunal, the Tribunal has held that forgetting a hearing date without something more is not sufficient to grant reconsideration. See, for example, Lacourciere v. Starkman, 2011 HRTO 1921 at para. 5.

15With respect to the applicant’s second ground for his Request, his failure to obtain legal representation, first of all, the Tribunal notes that it is the adjudicative branch established under the Human Rights Code, R.S.O. 1990, c. H. 19, as amended, and does not provide legal services. This is reinforced by information on the Tribunal’s Application form and its guide “Applicant’s Guide to filing an Application with the HRTO”. The Tribunal does not require that a party have legal representation. Secondly, there is no indication about how the applicant’s alleged failure to obtain representation prevented him from calling into the teleconference hearing on March 3, 2014. This is not an appropriate basis on which to grant the Request.

16Accordingly, based upon the above, the applicant’s Request is dismissed.