HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Amaninder Chahal
Applicant
-and-
Gamma-Dynacare Medical Laboratories, Dr. Joel Goodman, Kamil Zdunski and Barzeen Cooper
Respondents
RECONSIDERATION DECISION
Adjudicator: Paul Aterman
Indexed as: Chahal v. Gamma-Dynacare Medical Laboratories
WRITTEN SUBMISSIONS
Amaninder Chahal, Applicant
Claire Budziak, Counsel
background
1This Decision explains why the Tribunal is denying the applicant’s request to reconsider its January 28, 2014 Decision that declared his Application to be abandoned.
2The applicant filed an Application alleging discrimination with respect to employment because of race, colour, ancestry, ethnic origin and creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
3The respondents brought a request to remove the personal respondents to the Application. Although represented by counsel, the applicant provided no response to this request. In a Case Assessment Direction (“CAD”) dated January 10, 2014 the applicant was directed to file a response to the request no later than January 17, 2014. He was cautioned that if he failed to do so the Application could be dismissed as abandoned.
4The CAD was sent to the parties by courier and by fax. The Tribunal’s file indicates that the fax transmission to the respondents was successful but the transmission to the applicant’s counsel was not. I am satisfied that the applicant did not receive the CAD by fax.
5However, there is nothing in the Tribunal file to indicate that the parties did not receive the courier package containing the CAD. The Tribunal file indicates that the courier package sent to the applicant’s counsel has a bar code and a tracking number. There is nothing in the Tribunal file to indicate that the courier company attempted but failed to deliver the package to applicant’s counsel.
6The applicant did not respond to the Tribunal’s direction in the CAD and the Application was declared abandoned.
7The applicant requests reconsideration of the abandonment Decision on the ground that he was entitled to notice of the direction in the CAD but did not receive it through no fault of his own, and on the ground that other factors exist that outweigh the public interest in the finality of Tribunal decisions.
8The only reasons that the applicant puts forward in support of the reconsideration request are set out in a letter from his counsel where she states:
The reason for dismissal was based on the applicant's failure to respond to a Case Assessment Direction which neither the applicant nor RBPC ever received.
From the end of December 2013 through January 2014, RBPC incurred many delays in their mail during the ice storm and subsequent water-main breakages. As a result we have been unable to respond on a continuous basis.
9The letter goes on to state that as soon as she received the Tribunal’s Decision declaring the Application abandoned, the applicant’s counsel contacted the Tribunal’s Registrar and “…explained our situation”. Two weeks later the applicant’s counsel filed this request for reconsideration.
analysis and decision
10Section 45.7 of the Code provides the Tribunal with authority to reconsider its decisions. Rule 26.5 of the Tribunal’s Rules of Procedure provides that 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;
(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;
(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.
11The Tribunal’s Practice Direction on Reconsideration states the following:
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.
12The Tribunal was prompted to send the CAD itself because the applicant had already failed to respond to the respondents’ request to remove personal respondents, despite the fact that their request had been provided to applicant’s counsel by courier.
13Where, as in this request, an applicant claims that they did not receive notice from the Tribunal, the applicant has the onus of showing this to be the case. I appreciate that it may be difficult for the applicant to prove a negative.
14However, in this case the applicant is represented by counsel and she could have supported her assertion that she did not receive the CAD by first inquiring of the Registrar what means the Tribunal used to send the CAD to the parties. She would have been given the tracking number of the courier package and could have contacted the courier company. If the courier company had not in fact delivered the package, the applicant’s request to reconsider could have been supported by some evidence to that effect or even by evidence that she had made efforts to ascertain what the courier company did or did not do.
15There is no indication that applicant’s counsel made any such inquiries of the Registry or the courier company. In fact, her correspondence may suggest the opposite, in that she states that her firm faced “many delays in their mail”. The CAD was not sent by mail, but rather by courier.
16I am not satisfied, based on counsel’s assertion alone, that the applicant did not receive the CAD through no fault of his own.
17No reasons were advanced by applicant’s counsel in support of her assertion that that other factors exist that outweigh the public interest in the finality of Tribunal decisions.
18There are not sufficient reasons to exercise the Tribunal’s discretion in the applicant’s favour. The request for reconsideration is denied.
order
19The request for reconsideration is denied.
Dated at Toronto, this 18th day of March, 2014.
“Signed by”
Paul Aterman
Vice-chair