Mathurin v. Gateway Property Management Corporation, 2014 HRTO 340

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marie Mathurin

Applicant

-and-

Gateway Property Management Corporation

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: March 12, 2014

Citation: 2014 HRTO 340

Indexed as: Mathurin v. Gateway Property Management Corporation

APPEARANCES

Marie Mathurin, Applicant

Self-represented

Gateway Property Management Corporation, Respondent

Jane Ferguson, Counsel

Introduction

1On September 6, 2013, the Tribunal issued its Decision in this Application, 2013 HRTO 1503, dismissing the Application as abandoned. The applicant has asked the Tribunal to reconsider its Decision.

background

2The Tribunal’s Decision found the Application should be dismissed as abandoned because the applicant failed to respond to requests of her to provide dates for the re-scheduling of this case necessitated by her request.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. The applicant asserts that she called the Registrar in the first week of September 2013 from a friend’s cell phone and left a message to the effect that she was in an “emergency situation” and in “ extreme circumstances”. The applicant further asserts that she left a phone number for “ the owner of the house” so that the Tribunal could contact her because she knew she had a summary hearing coming up. The applicant also states that the Tribunal had her Ottawa address and did not attempt to contact her there.

b. The applicant also asserts that the respondent did ensure that she received some unidentified correspondence that the respondent asserts was sent to the applicant.

4The applicant makes other assertions about her efforts to resolve the dispute outside of the Tribunal’s process but these are not material to the reconsideration request.

5In its response to the Request the respondent asserts that the further delay occasioned by the applicant’s failure to provide dates for the rescheduling of the summary hearing and her further delay in filing this Request have compounded the prejudice accessioned by what they assert was an untimely Application.

DECISION

6Under 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.

7The 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.

8The 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.

9As 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.

10Having reviewed the materials in the Tribunal’s files and the parties submissions I am not satisfied that the applicant has met the significant burden imposed on a party seeking the reconsideration of a final Decision of the Tribunal.

11I make this determination for the following reasons. First I note that in her Application the applicant indicated that email was her preferred method of communication with the Tribunal. The applicant requested that the summary hearing be adjourned by email on June 4, 2013 and indicated at that time that she would provide alternate dates by the end of June 2013. The subsequent correspondence with respect to scheduling was conducted by email but the applicant did not respond to a number of communications in the month of June and early July 2013. I note that in this regard that the applicant did sent correspondence on June 20, 2014 requesting an extension of time to file submissions in another case but did not address the need to set dates in this case.

12Having not received any dates from the applicant to that point the Tribunal directed the parties to provide their available dates in email correspondence on July 16, 2013. As indicated in the Decision the applicant did not respond to this Direction and further correspondence was sent by both email and regular mail on July 23, 2013 directed that the applicant provide dates for re-scheduling and confirm her intentions with respect to the case. The applicant was also advised at that time that if she did not advise the Tribunal of her intentions by August 1, 2013 the Application could be dismissed as abandoned.

13As of September 6, 2013 the applicant had not responded to any of these directions and the Application was dismissed as abandoned. The Decision was sent to the parties by regular mail and email.

14The applicant claims that she contacted the Tribunal by phone “in the first week of September” and provided a phone number to call her if we needed to get in touch with her. There is no record of such contact. In any case the applicant in her submissions on this Request does not explain why she was unable to respond to email correspondence from mid-June to September 2013 or why she did not receive regular mail at any time during this period.

15I also find that there is substantial reason to question the applicant’s vague assertions that her extreme circumstances made it impossible for her to respond to the Tribunal’s directions in this case because contrary to her position above the applicant filed an Application on July 11, 2013 and then appears to have completed it on July 18, 2013 (File # 2013-15019-I). In a covering email on July 18, 2013 the applicant appears to indicate that she would provide a date for this case in accordance with the Tribunal’s Direction in a few days. She of course never did provide these dates. I also note that in Application 2013-15019-I the applicant provided the same contact information as for this case. If as she claims she was moving around and not able to recieve Tribunal materials it is unclear why she would have provided the same contact information on July 18, 2013.

16In conclusion I do not accept the explanation of the applicant for her failure to respond to the Tribunal’s directions and find that in the circumstances it would be inappropriate to exercise my discretion to reconsider the Decision.