Grace Rose v. Mackenzie Health, 2015 HRTO 1029

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Grace Rose

Applicant

-and-

Mackenzie Health

Respondent

-and-

Ontario Public Service Employees’ Union

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: August 4, 2015

Citation: 2015 HRTO 1029

Indexed as: Rose v. Mackenzie Health

WRITTEN SUBMISSIONS

Grace Rose, Applicant

Self-represented

Mackenzie Health, Respondent

Robert Hickman, Counsel

Ontario Public Service Employees Union, Respondent

No one appearing

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In Interim Decision 2012 HRTO 1665 issued on September 4, 2012, the Tribunal deferred proceeding with this Application pending the conclusion of another ongoing legal proceeding.

3On January 22, 2015 the Tribunal wrote to the applicant. The applicant was asked to inform the Registrar in writing within 30 days of the date of the letter whether the other proceedings remained ongoing and, if possible, to indicate when they were expected to be completed. The letter went on to warn the applicant that failure to provide the requested information might result in the Tribunal dismissing the Application as abandoned.

4The applicant did not respond to the Tribunal’s January 22, 2015 letter. The Tribunal’s letter to the applicant was not returned as undeliverable.

5On March 18, 2015, the Tribunal issued its Decision in this Application, 2015 HRTO 348, dismissing the Application as abandoned.

6On March 27, 2015 the applicant filed a Request for Reconsideration of the Decision. The respondents were asked for their submissions on the Request. The respondent Mackenzie Health responded and opposed reconsideration.

Decision

7Under 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.

8The 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 last amended April 2014). 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.

9The Tribunal’s Practice Direction on Reconsideration includes the following statements:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

10As 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.

11In her Request the applicant relied on Rule 26.5 (b) that is through no fault of her own she did not receive the Tribunal’s letter of January 22, 2015. Although the communication the applicant alleges she did not receive was not a Notice the situation is analogous to that contemplated by the Rule and I find that it is appropriate to determine the Request on that basis.

12Mackenzie Health opposes the Request arguing that there is no basis to conclude that the applicant did not receive the January 22, 2015 letter. The respondent also argues that the applicant has not explained what the status of the other proceeding other than to say it is ongoing.

13The Divisional Court recently addressed the issue of an alleged failure to give notice in Harvey v. Evan’s Bus Lines (Div. Ct. DV-14-2080) on June 9, 2015, when it quashed the Tribunal’s decision dismissing an application as abandoned because the applicant did not attend a hearing. The Court held the duty of fairness requires an applicant be given notice of a hearing. In that case, the Court determined the applicant had not received a notice of hearing based on circumstance not dissimilar to this case – that the applicant asserted that she had not received it.

14In my view this decision signals the Court’s view that unless there is reason to question the assertion of a party that a notice or other important correspondence was not received such assertion should be accepted at face value.

15In the circumstances this case the applicant had responded to a prior inquiry about the status of the other proceeding and seems to have taken steps immediately after receipt of the Decision to file her Request. In the circumstances there appears to be no reason not to accept her assertion at face value.

16As regards the other submissions of the respondent it is fair to say that the applicant has not advised in any meaningful way of the status of the other proceeding other than to advise it is ongoing but that is a separate issue which I will address below.

17For these reasons the Request is granted and the Decision set aside.

Next Steps

18This Application is currently deferred pending the conclusion of a proceeding under the WSIA. Other than advising that the proceeding is ongoing the applicant has provided no information about its status as directed in the January 22, 2015 letter. The applicant must provide more information to the parties and the Tribunal.

19The Tribunal makes the following Orders:

a. The Request is granted and Decision 2015 HRTO 348 is set aside;

b. The applicant is directed to advise the parties and the Tribunal whether the WSIB proceeding and specifically any appeals have been concluded and, if the proceeding is still ongoing, to provide information with respect to its status including whether any further steps in that proceeding are pending (such as a hearing date having been set).

20I am not seized of this case.