Fernando v. Fedex Networks Transport and Brokerage (Canada) Inc., 2014 HRTO 1063

Human Rights Tribunal of Ontario

Between:

Nishantha Fernando Applicant

-and-

Fedex Networks Transport and Brokerage (Canada) Inc. Respondent

Reconsideration Decision

Adjudicator: David Muir Date: July 21, 2014 Citation: 2014 HRTO 1063 Indexed as: Fernando v. Fedex Networks Transport and Brokerage (Canada) Inc.

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on September 9, 2013. This Decision deals with a number of issues which have arisen in this case.

THE REQUEST FOR RECONSIDERATION

2On October 31, 2013, the Tribunal issued its Decision in this Application, 2013 HRTO 1832, dismissing the Application as abandoned. On May 16, 2014, the applicant has asked the Tribunal to reconsider its Decision.

Background

3On September 23, 2013, the Tribunal issued a Notice of Intent to Dismiss the Application ("NOID") on the basis that the Application appeared to be outside the Tribunal's power to decide because it appeared that the applicant's employment relations were within federal jurisdiction. The applicant was directed to respond to the issues raised in the NOID by no later than October 23, 2013. The NOID advised the applicant that failure to respond to the NOID may be considered an abandonment of the Application and it might be dismissed for that reason.

4The applicant did not respond to the NOID but made enquires of the Tribunal on October 2, 2014. The applicant sought advice from the Tribunal about what she should do and indicated that she might file an application with the Canadian Human Rights Commission. The applicant was provided with general information, including contact information for the Canadian Human Rights Commission if she believed that her claim was within its jurisdiction and information on withdrawing this Application if that was her intention.

5On May 16, 2014, the applicant filed a Request for reconsideration to which was appended a Report from the Canadian Human Rights Commission. Submissions were sought from the respondent, which advised on July 4, 2014, that it had no objection to the reconsideration request.

6The basis for the Request is that the applicant has received a determination by the Canadian Human Rights Commission that the complaint is not within its jurisdiction and therefore must be within the Tribunal's jurisdiction.

Decision

7Under 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.

8The Tribunal has issued Rules governing 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). Most relevant to this Decision is Rule 26 which states:

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.

9The 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.

10As 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. 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.

11In the particular circumstances of this case I exercise my discretion to grant the Reconsideration pursuant to Rule 26.5 (d) – that there are other factors which outweigh the public interest in the finality of Tribunal decisions. In this case I have considered that the circumstances leading to the dismissal of the Application related to a complicated legal question of jurisdiction. I also note that had the applicant asked for a deferral of the Application pending an application to the Canadian Human Rights Commission, it would likely have been granted. I also have considered the fact, based on further communications from the applicant, that the workplace dispute is ongoing such that the applicant could file a new Application raising all of the same issues. Finally I have considered, although this is not at all determinative, the fact that the respondent does not object to the reconsideration.

12For these reasons the Request is granted, the Decision set aside, and the Application will continue to be processed by the Tribunal.

13This Decision does not include any determination of whether or not the Tribunal has jurisdiction to consider this matter or that the dispute is within its jurisdiction. However, based on the information before it, the Tribunal does not intend to raise the issue on its own motion at this stage.

Request to Expedite

14The applicant filed a Request to Expedite this Application. The Request is denied. The Tribunal's Rule 21.2.1 provides that where the Tribunal denies such a Request it need not provide reasons. In the circumstances, I would note only that the applicant has articulated no urgent circumstances that may affect the arid and just resolution of the merits of the Application as this has been interpreted by the Tribunal. See Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53.

Request for Order

15The applicant has filed a Form 10 Request for Order which appears to be in the nature of a request to amend the Application with further allegations. The respondent has not responded to this Request as the time for doing so has not yet concluded.

Failure of the Respondent to file a Response

16Although the respondent filed a Form 2 it has not addressed any of the allegations in the Application. Its only substantive response to the substance of the Application being "to be discussed at mediation". This is not a Response to the Application.

17The respondent is reminded of Rule 5.5 of the Tribunal's Rules:

5.5 Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal.

18In Kearns v. 1327827 Ontario, 2009 HRTO 457 at paras. 11 to 14, the Tribunal set out its approach in circumstances where a respondent fails to file a Response after having been cautioned by the Tribunal about the consequences of not doing so. As the Tribunal noted, after having been provided clear notice of what is required, a respondent who refuses or chooses not to file a Response should not be able to frustrate the objects of the Code, and the applicant's rights to assert a claim and seek a timely determination of that claim.

19Where no Response is filed, the Tribunal will proceed to determine the Application in the absence of a Response. In all but the rarest of cases, the Tribunal will deem the respondent to have waived its right to participate in the proceeding and deem the respondent to have accepted all of the allegations set out in the Application.

20The respondent will deliver and file its substantive Response to the allegations in the Application together with any submissions in response to the Request for Order seeking to amend the Application within 21 days of the date of this Decision.

Next Steps

21The parties have both agreed to mediation. The Registrar will accordingly schedule a mediation in this case after the respondent has filed its Response.

22I am not seized.