Rollick v. 1526597 Ontario Inc., 2014 HRTO 1427

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sabrina Rollick

Applicant

-and-

1526597 Ontario Inc. o/a Tim Hortons Store No. 2533

Respondent

RECONSIDERATION DECISION

Adjudicator: Naomi Overend Date: September 24, 2014 Citation: 2014 HRTO 1427 Indexed as: Rollick v. 1526597 Ontario Inc.

WRITTEN SUBMISSIONS

1526597 Ontario Inc., Respondent Kevin Matson, Representative

Sabrina Rollick, Applicant Jamie Lynne McGinnis, Counsel

1The Tribunal issued a Decision, 2014 HRTO 337, in this matter on March 12, 2014, after holding a hearing in which the respondent did not participate. At this point, the Response had not been filed with the Tribunal and the Tribunal had not otherwise heard from the respondent. The respondent learned of this decision and filed a Request for Reconsideration on the basis that it was entitled to but, through no fault of its own, had not received notice of either the proceeding or the hearing.

2The applicant was asked for submissions to which the respondent filed further submissions. By way of a Case Assessment Direction, the respondent was asked to file further information, which it did.

3For the reasons discussed below, the Request for Reconsideration is granted.

DECISION

4Under section 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (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.

7Some background information is necessary to understand what transpired with respect to this Application. The applicant filed her Application on November 30, 2012. On December 7, 2012, the Tribunal issued a Notice of Application to the respondent in which it directed that a response to the Application must be filed with the Tribunal not later than January 11, 2013.

8The respondent did not file a response by this date and on January 30, 2013 the Tribunal issued an Interim Decision requiring the respondent to file a response as well as an explanation for why it had failed to do so earlier. There was a problem with the delivery of this Interim Decision, and it was returned by the courier with the notation that it had been unable to connect with the respondent at the address, although there was no indication that it was an incorrect address.

9The applicant was asked to ensure that she had provided the correct address, which she did. In addition to confirming the original address, through corporate searches, the applicant’s representative also provided a personal address for the contact person for the respondent. The Tribunal wrote a letter to that additional address, enclosing the relevant documents, and requiring the respondent to file a Response by March 18, 2013.

10The respondent states that the address on its corporate records is not current and so it did not receive the Notice of Application or the Interim Decision when it was originally sent out. However, it did receive the copy of the Interim Decision sent to the personal address for the contact person for the respondent, Kevin Matson.

11It states that it sent in a Response to the Tribunal with the correct corporate address on March 18, 2013 (as directed), but then never heard from the Tribunal again. The Tribunal did not receive this Response and so did not receive notice of the correct corporate mailing address for the respondent. Moreover, it did not send any of the further documents (including an Interim Decision noting the respondent in default and the subsequent Notice of Hearing) to the personal address of Kevin Matson.

12This information came to light in the Request for Reconsideration and subsequent documents filed by Mr. Matson on behalf of the respondent. He was directed to file the Response, which he says he filed on behalf of the respondent on March 18, 2013. Mr. Matson complied with this direction in July 2014.

13Although in this case, the Tribunal has no way of verifying whether the Response was sent to it on March 18, 2013 – and for some reason not received – I accept that it was sent. Given that the Tribunal stopped sending reminders to the personal address of the contact person, and (not having received the package from the respondent with the correct corporate address) continued to rely on the corporate address obtained from the applicant’s corporate searches, I accept that the respondent did not have notice of the proceedings which resulted in the judgment issued in 2014 HRTO 337.

ORDER

14For this reason, the respondent has established that it has met the criterion in Rule 26.5(b) and it is appropriate for me to exercise my discretion to allow the reconsideration. Lack of notice is, of course, a fundamental issue of procedural fairness and the result in 2014 HRTO 337 cannot stand. The findings and remedial orders in that decision are accordingly quashed and the matter is remitted to proceed through the Tribunal’s normal process.

15Since both parties have agreed to mediation, the Registrar will schedule a mediation at the earliest possible date. In the meantime, the applicant has 15 days from the date of this Reconsideration Decision to file any Reply to the Response dated March 18, 2013.