Rosario v. FORM Architecture Engineering, 2014 HRTO 1466

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Allen Rosario

Applicant

-and-

FORM Architecture Engineering

Respondent

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: October 1, 2014

Citation: 2014 HRTO 1466

Indexed as: Rosario v. FORM Architecture Engineering

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2013 HRTO 1252 dated July 17, 2013, which dismissed this Application as abandoned.

2On May 8, 2014, the applicant filed a Request for Reconsideration of the Tribunal’s Decision. The respondent filed its submissions in response to this Request on May 21, 2014.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”) provides as follows:

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.

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The 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).

5The 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.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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.

7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an Application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

8The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 of the Rules provides:

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.

9As a result, I need to determine whether the material filed by the applicant in support of the Request for Reconsideration satisfies any of the criteria set out in Rule 26.5 relied upon by him. The applicant relies upon the criteria identified in Rule 26.5(b) and (d).

10The hearing in this matter was scheduled to take place in Thunder Bay on September 13, 2013. In accordance with the Tribunal’s Rules of Procedure, the applicant was supposed to have made disclosure of his arguably relevant documents to the respondent by March 18, 2013 which was extended at the respondent’s request to May 21, 2013. The applicant did not do so. As a result, the Tribunal issued a Case Assessment Direction (“CAD”) dated July 3, 2013 noting the applicant’s failure to comply with his disclosure obligations, giving him 14 days to comply, and advising him that his Application would be dismissed as abandoned if he failed to do so. When the applicant failed to comply, his Application was dismissed as abandoned on July 17, 2013.

11Unbeknownst to the Tribunal, the applicant was incarcerated at the time both the CAD and the Decision were issued. By handwritten letter to the Tribunal, received on September 10, 2013, the applicant wrote to advise that he was in jail and requested an adjournment of the September 13, 2013 hearing (which by this time had been cancelled as the Application already had been dismissed). The Tribunal responded by letter dated September 11, 2013 sent to the applicant at the Thunder Bay Jail, and provided him with a copy of the Decision dated July 17, 2013, the Tribunal’s Practice Direction on Reconsideration and a Request for Reconsideration (Form 20), and a Statement of Delivery (Form 23). The Tribunal’s letter also explained the reconsideration process, including the fact that the time limit for filing a Request for Reconsideration is 30 days from the date of the decision and that if the Request was filed late, the applicant should explain the delay. This letter was never returned to the Tribunal as undeliverable.

12The applicant was incarcerated at the Thunder Bay Jail during the period from March 17, 2013 to March 18, 2014. He states that he did not receive the Decision dated July 17, 2013 while he was in custody, and further states that to the date of his Request for Reconsideration he still has no knowledge of the Tribunal’s Decision.

13I have two primary problems with the applicant’s Request. First, the Notice of Hearing was sent to the applicant on February 25, 2013, prior to his period of incarceration. By this Notice, the applicant was aware not only that a hearing was going to take place on September 13, 2013, but also that he had a deadline for disclosure to meet under the Rules and a further deadline to meet to file his pre-hearing materials. Yet in light of this knowledge, the applicant took no steps whatsoever to contact the Tribunal or the respondent to advise them of his incarceration or to obtain extensions to comply with his deadlines under the Rules. As noted by the respondent, this is inconsistent with the applicant’s obligation under Rule 1.13 to notify the Tribunal and all parties of any change in his contact information as soon as possible.

14While the applicant did eventually write a letter to the Tribunal advising that he was in jail and seeking an adjournment of the hearing, this was filed only three days before the hearing was to take place and well after the deadlines for making disclosure and filing pre-hearing materials had long passed. In my view, given his obligation under the Rules to notify the Tribunal and the respondent of any change in his contact information, which he had not done from the time he was first incarcerated on March 17, 2013 until he filed his letter with the Tribunal on September 10, 2013, it cannot fairly be said that the applicant was unaware of the CAD reminding him of his disclosure obligations and setting a deadline for compliance “through no fault of his own” within the meaning of Rule 26.5(b).

15The second difficulty I have is with the applicant’s failure to file his Reconsideration Request in a timely manner. Under the Rules, a request for reconsideration is to be made within 30 days following the issuance of a final decision. The applicant’s request was made almost 10 months after the Decision dismissing his Application. Pursuant to Rule 26.5.1, a request for reconsideration made more than 30 days following a decision will not be granted unless the Tribunal determines that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. This mirrors the language that appears in s. 34(2) of the Code in the context of delay in making an Application to the Tribunal. This language requires the applicant to provide a reasonable explanation for the delay. As previously stated, the Tribunal’s Decision dated July 17, 2013 was sent to the applicant at the Thunder Bay Jail on September 11, 2013 and was not returned as undeliverable. The applicant states that he did not receive the Decision while he was incarcerated. Even if that is true, the applicant was released from incarceration on March 18, 2014, and has provided no explanation to justify the further 6 weeks of delay before he filed his Reconsideration Request. Accordingly, I find that the applicant’s Request for Reconsideration is untimely and he has not satisfied me that the delay in filing his Request was incurred in good faith.

16Accordingly, I find that the applicant has not satisfied me that he was entitled to but, through no fault of its own, did not receive notice of his need to comply with his disclosure obligations or have his Application dismissed as abandoned, or that other factors exist that outweigh the public interest in the finality of Tribunal decisions. I also find that the applicant’s Reconsideration Request is untimely.

17For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.