Butt v. 1383016 Ontario Inc. o/a Help Unlimited, 2014 HRTO 730

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Naveed Butt Applicant

-and-

1383016 Ontario Inc. o/a Help Unlimited Respondent

RECONSIDERATION DECISION

Adjudicator: Mark Hart Date: May 21, 2014 Citation: 2014 HRTO 730 Indexed as: Butt v. 1383016 Ontario Inc. o/a Help Unlimited

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2014 HRTO 192 dated February 11, 2014, which dismissed this Application as abandoned due to the applicant’s failure to attend the hearing.

2On March 8, 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 identified by the applicant in his Request for Reconsideration. The applicant relies upon the criteria identified in Rule 26.5(a) and (d).

10The applicant asserts in his Request for Reconsideration that he was not treated fairly by the Tribunal, on the basis that the respondent did not attend the mediation scheduled for May 7, 2013 but relief was given to the respondent by postponing the mediation. He asserts that the Tribunal extended special treatment to the respondent by trying to contact the respondent when it failed to appear at the mediation, but did not extend the same kind of treatment to the applicant.

11A review of the file indicates that the applicant’s assertions about the mediation are not entirely accurate. Mediation in this matter originally was scheduled for March 19, 2013. At the applicant’s request, this mediation date was cancelled and the parties were asked to propose alternate dates on which they were available. The parties did so, and May 7, 2013 was selected as the new mediation date. A Notice of Rescheduled Mediation confirming this date was sent out to the parties by letter dated January 9, 2013.

12Respondent counsel subsequently advised that her instructing client in fact was not available to attend the mediation on May 7, and proposed re-scheduling the mediation to June 28, which was a date that all parties previously had indicated they were available. On April 30, 2013, the applicant sent e-mail correspondence to the Tribunal objecting to the re-scheduling of the mediation and asked that it proceed on May 7. The Tribunal responded by e-mail correspondence dated May 1, 2013 to advise that, due to unforeseen circumstances which had caused respondent counsel’s instructing client no longer to be available on May 7, the Tribunal was prepared to re-schedule the mediation. The applicant was asked to confirm whether he was still available to proceed with mediation on June 28, 2013. It was noted that, as mediation is a voluntary process, if the applicant did not confirm that he was willing to attend mediation, then the matter would be placed in the queue to be assigned a hearing date.

13The applicant replied on May 2, 2013 by continuing to object to the re-scheduling of the mediation and did not confirm whether he was still available on June 28. Accordingly, by e-mail correspondence dated May 8, 2013, the applicant was once again asked if he was agreeable to proceeding with mediation on June 28, and advised that if he did not respond then the matter would be place in the hearing queue. As the applicant did not respond, the matter was placed in the hearing queue and subsequently scheduled for hearing. In the meantime, the applicant appeared at the Tribunal’s Hearing Centre on May 7, 2013 to attend the mediation, despite having previously been advised that it had been cancelled. Unfortunately, the assigned mediator had not been advised that the mediation had already been cancelled and made efforts to ascertain why the respondent was not in attendance.

14None of the foregoing provides any basis for the applicant’s allegation that he was treated unfairly, nor does it provide any explanation or excuse for his failure to attend the scheduled hearing. Prior to May 7, 2014, the applicant already had been advised by the Tribunal that the mediation which had been scheduled to proceed that day was cancelled. If the mediator made any attempt to contact the respondent to ascertain why it was not in attendance, this was a result of the mediator not having been informed that the mediation already had been cancelled and does not indicate any unfair treatment.

15Further, mediation is a voluntary process, and a party’s failure to attend mediation does not result in potential dismissal of the Application. In contrast, the hearing is a mandatory process that the parties are required to attend. A failure to attend a hearing results in potential consequences for both parties: for an applicant who fails to attend, the Application may be dismissed as abandoned; for a respondent, the hearing may proceed in the respondent’s absence and a decision made solely on the basis of the applicant’s evidence.

16There is no question in this case that the applicant had notice of the hearing. The hearing originally was scheduled to proceed on December 20, 2013. The applicant requested that the hearing be re-scheduled and provided a number of alternate dates, including February 6, 2014. After canvassing the parties, the Tribunal then issued a Notice of Hearing dated June 12, 2013 confirming that the hearing would proceed on February 6, 2014. The parties thereafter proceeded to exchange documents and file their pre-hearing materials in accordance with the timelines set out in the Notice of Hearing. (Due to an administrative error, the hearing date originally was stated to be February 6, 2013 but this was corrected by letter sent to the parties on November 12, 2013. In addition, while the Tribunal’s Decision dated February 11, 2014 refers to the hearing having been scheduled for February 7, 2014, this too is in error as the hearing was scheduled for February 6, 2014 and the Appearance Sheet in the file indicates that the respondent and the adjudicator attended for the hearing on February 6, 2014).

17Notably, there is nothing in the Tribunal’s file to indicate that any communication was sent by the applicant to the Tribunal or the respondent indicating any inability to attend the hearing on February 6, 2014. Nor does the applicant provide any explanation or excuse for his failure to attend the hearing in his Request for Reconsideration. Accordingly, the applicant has provided no basis in his Request for Reconsideration to support his allegation that he was treated unfairly.

18The applicant also asserts in his Request for Reconsideration that he has discovered “new important evidence / documents” relating to his claim. However, he provides no information as to what this alleged new material is, why he could not have obtained any such material earlier, or how any such material would be potentially dispositive of his case. As a result, the applicant has not satisfied the criteria set out in Rule 26.5(a) for allowing his Request for Reconsideration.

19Further, the applicant’s Request for Reconsideration has not identified other factors that exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions, as required by the criteria in Rule 26.5(d).

20For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.