James v. Bohbot, 2014 HRTO 58

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nerissa G. James Applicant

-and-

Yoav Bohbot Respondent

-and-

SEIU, Local 1 Canada Intervenor

RECONSIDERATION DECISION

Adjudicator: Catherine Bickley Decision Date: January 14, 2014 Citation: 2014 HRTO 58 Indexed as: James v. Bohbot

WRITTEN SUBMISSIONS

Nerissa G. James, Applicant

Harry Kopyto, Representative

Introduction

1This Reconsideration Decision considers the applicant’s Request for Reconsideration (the “Request”) of the Tribunal’s October 10, 2013 final Decision dismissing her application.

procedural history

2The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O., c. H.19, as amended (the “Code”).

3Following the applicant’s evidence, the respondent brought a motion to have the Application dismissed on the basis that the applicant had failed to establish a prima facie case. A conference call was scheduled to hear that motion and the parties were directed to address the Tribunal’s “no reasonable prospect of success” analysis as articulated in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777.

4After neither the applicant nor her representative participated in the conference call, the respondent requested that the Application be dismissed as abandoned. After carefully considering all the circumstances, I denied that request by way of a decision 2013 HRTO 1592, dated September 23, 2013 (the “September decision”). The September decision also set a deadline of October 7, 2013 for the applicant to file authorities prior to an anticipated conference call and noted that failure to do so could lead to dismissal of the Application as abandoned. The final paragraph of the September decision reminded the parties that they would be expected to address the Tribunal’s analysis in Pellerin.

5On October 10, 2013, with the applicant having failed to file authorities by the deadline set in the September decision, or to communicate with the Tribunal in any way, the Tribunal issued a decision 2013 HRTO 1711 (the “October decision”), which dismissed the Application as abandoned.

6On October 23, 2013, the applicant’s representative wrote to the Tribunal’s Registrar asking if the October decision could be “administratively reversed”.

7On October 24, 2013, the Registrar replied, directing the applicant’s representative to the Tribunal’s Practice Direction on Reconsideration and the Tribunal’s Rules of Procedure.

8On November 22, 2013, the Request for Reconsideration was filed.

decision

9The Request is denied. It was filed in an untimely manner and does not meet any of the limited criteria on the basis of which the Tribunal will exercise its discretion to reconsider a final decision.

Timeliness

10The Tribunal’s Rules require that a Request for Reconsideration be filed within 30 days of the date of a Decision. This Request was filed 43 days after the date of the Decision. Rule 26.5.1 of the Tribunal’s Rules provides:

A Request for Reconsideration made more than 30 days following the 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.

11The explanation offered by the applicant’s representative for the delay in filing the Request is as follows:

I am asking for an extension of the time to file the Request for Reconsideration as no notification from the Registrar to whom I wrote the October 23, 2013 letter that they would ignore it and I assumed that I would receive the response letter and that if it was necessary to do a Request for Reconsideration then the Registrar would so advise me.

12A review of the file indicates that the Registrar did not ignore the October 23, 2013 letter but in fact responded promptly, on October 24,2013, by way of a letter advising that:

Tribunal decisions are final and are not subject to appeal and cannot be administratively reversed. In certain limited circumstances you may ask the Tribunal to reconsider its decision.

13The Registrar’s October 24, 2013 letter then directed the applicant’s representative to the Tribunal’s Practice Direction on Reconsideration and the Tribunal’s Rules of Procedure. Both these documents are readily available on the Tribunal’s website.

14The October 24, 2013 letter was sent to the applicant’s representative by email. It was not returned as undeliverable. I am satisfied that the applicant’s representative received the letter.

15The applicant’s representative is legally trained, has extensive experience before this Tribunal and has been involved in previous Requests for Reconsideration.

16No additional explanation has been offered for the delay in filing the Request for Reconsideration. That delay alone may lead to denial of the Request: der von Felix v. International Financial Data Services (Canada), 2010 HRTO 362, Liu v. Country Herbs, 2011 HRTO 1166, Hardman v. Grey County Housing, 2012 HRTO 1142.

17I find that the applicant has not established that the delay was incurred in good faith.

basis for reconsideration

18In addition, I find that even if the Request had been made in a timely fashion, it does not satisfy any of the limited grounds on which the Tribunal’s Rules permit reconsideration. Rule 26.5 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.

19The Request relies on (a), (b) and (d) in support of the Request and refers to the letter dated October 23, 2013 for details. That letter, from the applicant’s representative, states, in its entirety:

I received the Decision dated October 10, 2013 dismissing the above case as abandoned.

I misread the September 23, 2013 Decision. It was not clear to me what the requirement to file authorities referred to. The paragraph reprinted in paragraph 3 of the October 10, 2013 decision appeared ambiguous to me. That sentence states that the Tribunal may dismiss the application as abandoned if I do not provide authorities upon which I intended to rely. As I did not intend to rely on any authorities, why would the case be deemed to be abandoned?

With respect to the Pellerin v Conseil case referred to in paragraph 4 of the September 23rd decision, the decision of the Court of Appeal recently made in Peel Law Association et al v Selwyn Pieters, 2013 ONCA 396 offers a complete answer to this case. However, I have received no direction to respond to it.

Please advise if the decision made by Adjudicator Catherine Bickley may be administratively reversed or whether I am required to file a Reconsideration Application.

20The October 23rd letter does not address (a), as it does not point to any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

21The October 23rd letter also does not address (b), and there is no issue of notice in this case.

22That leaves only section (d), specifically, do any other factors exist, that in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions and orders? Having carefully considered the history of this case and the existing circumstances, I am not satisfied that any such factors exist.

23The 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.

24The applicant’s representative states that he misread the September decision.

25The two main paragraphs in the October 23, 2013 letter seem to contradict one another, with one paragraph containing a statement that the applicant’s representative did not intend to rely on any authorities and the other referring to an authority on which he apparently intended to rely.

26The September decision made it clear that the application was at risk of being dismissed as abandoned. If the applicant’s representative was confused as to what was required by the September decision, he could have and should have contacted the Tribunal to seek clarification. It would be unusual for an advocate not to file any authorities when faced with a pending conference call which was intended to determine whether his client’s application would be dismissed. If this was indeed the case, a simple letter to that extent would have sufficed.

27Finally, the applicant’s representative states that he was not directed to respond to the Pellerin decision. The parties were advised that they were to address that decision at the time that the respondents advised that they were bringing the motion to dismiss the Application on the basis that no prima facie case had been established. The September decision also reminded the parties that they were expected to address the Pellerin analysis. There could not, in my opinion, be any misunderstanding about what was expected from the parties.

28In conclusion, the Request and the October 23, 2013 letter do not provide any basis on which to grant the Request.

29For all of the reasons set out above, this Request is denied.