Labiris v. Playit Twice Inc. o/a F.G. Bradley’s, 2014 HRTO 1408

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

George Labiris Applicant

-and-

Playit Twice Inc. o/a F.G. Bradley’s Respondent

RECONSIDERATION DECISION

Adjudicator: Kevin Cleghorn Date: September 23, 2014 Citation: 2014 HRTO 1408 Indexed as: Labiris v. Playit Twice Inc. o/a F.G. Bradley’s

WRITTEN SUBMISSIONS

George Labiris, Applicant Self-represented

Playit Twice Inc. o/a F.G. Bradley’s, Respondent Dan Black, Counsel

1This is a Request for Reconsideration made by the applicant pursuant to Rule 26 of this Tribunal’s Rules of Procedure. The applicant’s Application, dated June 14, 2013, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleged discrimination in employment based upon place of origin, ethnic origin, family status, marital status and/or age was dismissed on August 13, 2014 after the applicant failed to attend for the hearing scheduled for that day.

2By Notice of Hearing issued by the Tribunal dated March 6, 2014, the matter was set down for hearing on August 13, 2014. The Notice of Hearing directed the parties to comply with Rules 16 and 17 of the Tribunal’s Rules of Procedure. In particular, the Notice of Hearing directed the parties to deliver to each other, and file with the Tribunal, a list of arguably relevant documents by March 27, 2014. It also directed the parties to exchange with one another, and file with the Tribunal, the documents they intend to rely upon at the hearing, a list of their witnesses and a summary of their witnesses’ anticipated evidence (the “Pre-Hearing Materials”) by no later than June 30, 2014.

3The applicant did not file his Pre-Hearing Materials by June 30, 2014 and on July 28, 2014, the Tribunal issued a Case Assessment Direction (“CAD”) directing the applicant to immediately provide these materials. The CAD advised that if the applicant had not done so within 7 days of the date of the CAD, the Application may be dismissed as abandoned. In C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426, the Tribunal explained, at paragraph 7:

The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent.

4The applicant did not comply with his pre-hearing obligations nor has he complied with directions contained in the CAD. It should be noted that the Notice of Hearing was forwarded to the applicant by ordinary mail on March 6, 2014 and was not returned to the Tribunal. The CAD was forwarded to the applicant by e-mail at an e-mail address provided by the applicant in the Application and from which the applicant communicated with the Tribunal as late as August 18, 2014 and by ordinary mail. The Tribunal has not received any notification from the applicant of any change of mailing and/or e-mail address during the course of this process. Indeed, the mailing address and e-mail address provided by the applicant in his Request for Reconsideration are the same mailing address and e-mail address utilized by the applicant throughout this proceeding and which he lists in his Application.

5The applicant, in response to the CAD, communicated with this Tribunal on August 6, 2014 requesting additional time to file his witness statements and denying receipt of the Notice of Hearing. By correspondence e-mailed to the applicant on August 7, 2014 (and sent to the same e-mail address from which he had communicated to this Tribunal), and provided simultaneously to the respondent’s counsel, the parties were advised to attend for the hearing scheduled on August 13, 2014 at 9:30 a.m. The parties were asked to be prepared for commencement of the hearing as scheduled and to make argument as to whether the Application should be dismissed for the failure of the applicant to comply with Rules 16 and 17 and/or whether the hearing should be adjourned. The applicant did not appear at the hearing on August 13, 2014 resulting in the dismissal of his Application as abandoned.

6Rule 26.5 of the Tribunal’s Rules of Procedure provides as follows:

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.

7The Tribunal has issued a Practice Direction on Reconsideration to provide guidance to the community on the nature of the reconsideration process. The Practice Direction states, in part:

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.

8The applicant claims in his reasons and representations in support of his Request for Reconsideration that: (a) this Tribunal has an incorrect e-mail address for him; (b) he did not receive notice of the hearing as a result of this Tribunal sending notices concerning the hearing to that incorrect e-mail address; (c) he spoke with this Tribunal and was told that he was able to bring witnesses in person, whereas he later learned that that he had to provide witness statements and information in advance; (d) the false information about witnesses “greatly harmed his case and caused the case to be dismissed”; and (e) that he received a call in August, 2014 stating that his hearing date was being changed. In short, he seeks reconsideration on the basis of Rule 26.5(b) in that he did not have notice of the hearing.

9This Tribunal has, in fact, the same e-mail address that the applicant provided at the outset of this process. All communication by e-mail to or from this Tribunal involving the applicant has been to or from that same e-mail address and/or by ordinary mail. The applicant failed to attend for the mediation on December 3, 2013. He advised this Tribunal by e-mail on January 25, 2014 that he had not received notice of the mediation as he “was unable to answer any previous e-mails because of the impact of the ice storm that flooded my residence.” He did not claim, as he does now, that he failed to attend for the mediation as a result of the Tribunal having an incorrect e-mail address for him. There has never been a correction or up-date from the applicant concerning any change to his mailing or e-mail address, which is incumbent on him to provide. Moreover, there has never been mail, either hard copy or e-mail, sent to the applicant at any time that has been returned to this Tribunal or any email that has been returned as “undeliverable”.

10The Application was dismissed because the applicant failed to attend for the hearing, not because of any false information he claims to have received. It could have been dismissed for failure of the applicant to comply with his obligations under Rules 16 and 17, non-compliance which continues to this day. This Tribunal provided notice of the hearing date to the applicant in the Notice of Hearing dated March 6, 2014. The hearing date of August 13, 2014 was further confirmed by e-mail to him dated August 7, 2014. There is no evidence, beyond the applicant’s mere assertion, that an individual from the Tribunal contacted the applicant by telephone in August, 2014 to advise of any change to, or adjournment of, the hearing date. In any event, if the applicant had been given any information about a delay or adjournment of the hearing date, the applicant took no steps to inquire directly with the Tribunal to determine the status of the hearing in the face of two separate notifications in writing of the date of the hearing.

11I find the applicant has not met the burden of establishing the criteria justifying reconsideration. I am satisfied that, in all the circumstances, the applicant was provided notice of the hearing date, that he failed to attend on the scheduled date and that the Application was properly dismissed as abandoned.

12For all the foregoing reasons, the Request for Reconsideration is denied.