Worku v. New Home Comfort, 2014 HRTO 726

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Matthew Worku

Applicant

-and-

New Home Comfort

Respondent

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: May 21, 2014

Citation: 2014 HRTO 726

Indexed as: Worku v. New Home Comfort

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2014 HRTO 166, dated February 5, 2014, which dismissed this Application as abandoned due to the applicant’s failure to comply with his pre-hearing obligations or respond to the Tribunal’s Case Assessment Direction (“CAD”) directing him to do so.

2On May 5, 2014, the applicant filed a Request for Reconsideration of the Tribunal’s Decision.

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).

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 his Request for Reconsideration satisfies the criteria set out in Rule 26.5 upon which the applicant relies. The applicant relies upon the criteria identified in Rule 26.5(c).

10The first issue that arises is that, pursuant to Rule 26.1 of the Tribunal’s Rules of Procedure, a Request for Reconsideration is to be made within 30 days of the date of the Tribunal’s final decision in the matter. The Tribunal’s final decision in this matter is dated February 5, 2014. The applicant first purported to file a Request for Reconsideration with the Tribunal by e-mail on April 15, 2014 (although the date on the form itself is shown as March 20, 2014). That same day, the Tribunal advised the applicant that the form was incomplete and that he also needed to serve the form on the respondent before filing it with the Tribunal. The applicant thereafter purported to file a new Request for Reconsideration by e-mail on May 2, 2014, but once again failed to serve the form on the respondent. After being again advised to do so, the applicant served his Request for Reconsideration on the respondent and filed a Statement of Delivery with the Tribunal on May 5, 2014. This is the date upon which the applicant’s Request for Reconsideration is considered to have been filed.

11Obviously, May 5, 2014 is some three months after the date of the Tribunal’s decision, and so well outside the 30-day time period for making a reconsideration request. Even if I had regard to the date when the applicant first sent a Request for Reconsideration to the Tribunal on April 15, 2014, this is still over two months following the Tribunal’s decision. On the form itself, Question 5 asks the applicant, if the reconsideration request is being filed more than 30 days after the date of the decision, to explain in detail the reason for the delay and why the request should be accepted late. In response, all that is stated by the applicant is, “I do not have internet access at home and I just became employed”.

12This does not provide a good faith explanation for the applicant’s delay in filing his Request for Reconsideration. The Tribunal’s decision in this matter was sent to the applicant by courier, and was delivered to his address at 1:48 p.m. on February 6, 2014. It was also forwarded to the parties by e-mail at 10:07 a.m. on February 6, 2014. Even if the applicant did not have internet access at the time and so was not able to access his e-mail, he nonetheless received the decision by courier on February 6, 2014 but did not file his reconsideration request for another over two months. The applicant has provided no explanation for this delay. The applicant’s statement that he just became employed similarly does not provide any good faith explanation for the delay.

13Accordingly, I find that the applicant’s Request for Reconsideration was filed with the Tribunal beyond the 30-day time period prescribed by the Rules, and that the applicant has not satisfied me that this delay was incurred in good faith. As a result, on this basis alone, the Request for Reconsideration is denied.

14Further, the applicant also has not provided any substantive basis for reconsideration of the Tribunal’s decision in this matter. The Request for Reconsideration form asks the applicant to provide detailed reasons and representations in support of his request. All that is stated by the applicant is, “I was fired because of my disability and that is in conflict with established case law”.

15That, however, is not the basis upon which the applicant’s claim was dismissed. His claim was dismissed as abandoned due to his failure to comply with his pre-hearing obligations and his further failure to comply with the Tribunal’s direction in its January 21, 2014 CAD that he do so. The applicant has provided no explanation for his failure to comply with his pre-hearing obligations or respond to the Tribunal’s CAD. The Tribunal’s CAD was sent to the applicant by e-mail, regular mail and courier. Tracking information for the courier package shows that it was delivered to the applicant’s address on January 22, 2014 at 1:31 p.m. The deadline for complying with the direction set out in the Tribunal’s CAD was February 3, 2014. The applicant was specifically warned in the CAD that if he did not comply with the Tribunal’s direction, his Application may be dismissed as abandoned. Notwithstanding this warning, no communication was received by the Tribunal from the applicant by February 3, 2014, or indeed up to and including the date of the Tribunal’s decision.

16The applicant’s Request for Reconsideration provides no explanation for his failure to comply with, or respond in any fashion to, the Tribunal’s direction, and in particular does not provide any basis upon which to conclude that the dismissal of the Application for this reason is in conflict with established jurisprudence or Tribunal procedure or that the proposed reconsideration involves a matter of general or public importance, as required by Rule 26.5(c).

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