HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Cheryl Harvey
Applicant
-and-
Evan’s Bus Lines
Respondent
RECONSIDERATION DECISION
Adjudicator: Keith Brennenstuhl
Indexed as: Harvey v. Evan’s Bus Lines
WRITTEN SUBMISSIONS
Cheryl Harvey, Applicant
Self-represented
Introduction
1In a Decision dated November 12, 2014, the Tribunal dismissed the Application that had been filed by the applicant pursuant to section 34 the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) when the applicant failed to participate in a Summary Hearing that had been scheduled for November 5, 2014. Shortly before the Summary Hearing the principal of Evan’s Bus Lines, Rory Evans, died. The respondent was represented at the Summary Hearing by a member of Mr. Evan’s family.
2The applicant filed a Request for Reconsideration (the “Request”) on November 18, 2014. The Tribunal has not required a response to the Request from the respondent.
3For the reasons set out below, the applicant’s Request is dismissed.
BACKGROUND
4The applicant filed her Application on April 16, 2014. As required she provided a mailing address in Winchester, Ontario, and an email address on her Application as part of her “contact information” and indicated that the best way to send information to her was by email or fax.
5On April 17, 2014, the Tribunal sent the applicant a notice of “Confirmation of Receipt of Application” by regular mail to her Winchester address. It was not returned as undeliverable to the Tribunal.
6On April 24, 2014, the Tribunal sent the applicant a “Notice of Incomplete Application” by email and by regular mail to her Winchester address. It was not returned as undeliverable to the Tribunal.
7The Tribunal issued a Case Assessment Direction dated July 17, 2014 (“CAD”) directing, on its own initiative, that a summary hearing would be scheduled to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application, or part of the application would succeed.
8The CAD was sent to the applicant on July 17, 2014 by email and by regular mail to her Winchester address. It was not returned as undeliverable to the Tribunal. In her brief submissions, the applicant acknowledges that she received the Notices and the CAD by mail at her Winchester address.
9On September 10, 2014 the Tribunal sent the parties a Notice of Summary Hearing scheduling the summary hearing by teleconference call, for November 5, 2014 (the “summary hearing”). The notice set out the call information for the summary hearing. The Notice was sent to the applicant by regular mail at her Winchester address. It was not returned as undeliverable to the Tribunal. It was sent to the respondent by regular mail at the address provided by the respondent.
10The respondent participated in the summary hearing, but the applicant did not. Consistent with the Tribunal’s practices, the Tribunal held down the start of the hearing for 30 minutes. When the hearing reconvened, the applicant still had not called in or otherwise communicated with the Tribunal. The Application was dismissed orally by the Tribunal at that time as being abandoned.
11On November 12, 2014 the Tribunal sent the applicant the summary hearing Decision by email and regular mail. It was not returned as undeliverable to the Tribunal. In the Decision, the Tribunal found that the applicant received timely and proper notice of the summary hearing and that it had not received any indication the applicant would not be attending the hearing. In the absence of the applicant or any explanation for her failure to participate in the hearing, the Application was dismissed as abandoned.
REQUEST FOR RECONSIDERATION
12The applicant submits in her Request, that she did not receive the Notice of Summary Hearing mailed to her Winchester mailing address. She submits that it was not until she got the Tribunal’s summary hearing Decision that she learned that a hearing was scheduled for November 5, 2014.
13The applicant bases her Request upon Rule 26.5(b) of the Tribunal’s Rules of Procedure.
DECISION
14Tribunal Rule 26.5 reads, in part as follows:
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 the 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 and orders.
15Rule 26(5) (b) refers specifically to a party not receiving notice of a proceeding or a hearing. In this particular case the issue is the applicant not receiving the Notice of Summary Hearing. Under the circumstances, if I am satisfied that the applicant did not receive the Tribunal’s September 10, 2014 Notice of Summary Hearing, through no fault of her own, this would be grounds for allowing her Request for Reconsideration pursuant to Rule 26.5 (b).
16However, the applicant’s Request for Reconsideration is denied. I am satisfied, based on the material before me, that the applicant received the Notice of Summary hearing mailed to her Winchester address in September 2014.
17I am of the view that for the purposes of communicating with the applicant that it was reasonable for the Tribunal to rely on the mailing address provided by the applicant in her Application. See Zablockine v. Cochrane Food Bank Inc., 2012 HRTO 2009. I note that the Tribunal’s general rule, as outlined in the Tribunal’s Practice direction on Communicating with the Tribunal, is to send key documents to parties by regular mail.
18The applicant submits that she advised the Tribunal in her Application that the best way for the Tribunal to communicate with her was through email. While that may be so, the applicant indicated that, save for the Notice of Summary Hearing, she in fact received all of the Tribunal’s communications by regular mail, including the summary hearing Decision.
19It is not clear from the applicant’s submissions why the Tribunal’s reliance on mailing the Notice of summary Hearing to Winchester address was unreasonable or inappropriate. The applicant has not indicated that she was living elsewhere other than Winchester in the early fall of 2014 or that she could not receive mailings sent to her Winchester address.
20I find that the Notice of Summary Hearing was properly served. It was duly sent to the applicant at the address she identified in her Application and in accordance with the Tribunal’s general practice for sending important documents. If she was away from Winchester, I am not satisfied that she can rely on a claim that she did not receive the Notice of Summary Hearing through no fault of her own.
21In my view, the Tribunal provided the applicant with the Notice of Summary Hearing when it sent it to the applicant’s Winchester address. The applicant has not satisfied me that she did not receive the notice of proceeding through no fault of her own.
22The Tribunal’s Practice Direction on Reconsideration states:
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.
23Reconsideration is only granted in exceptional circumstances. In this case, there is no information that satisfied me that the applicant did not receive the Notice of Summary Hearing through no fault of her own.
24The Request for reconsideration is dismissed
Dated at Toronto, this 28th day of November, 2014.
“signed by”
Keith Brennenstuhl
Vice-chair