Shepherd v. Intercon Security Ltd., 2015 HRTO 1065

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Irby Shepherd Applicant

-and-

Intercon Security Ltd. Respondent

RECONSIDERATION DECISION

Adjudicator: Brian Cook Date: August 11, 2015 Citation: 2015 HRTO 1065 Indexed as: Shepherd v. Intercon Security Ltd.

1This Application was scheduled for a preliminary hearing by telephone conference call on April 17, 2015 to determine if the Application should be dismissed for delay. The applicant did not call into the preliminary hearing conference call and the Application was dismissed as abandoned in Decision 2015 HRTO 512, dated April 22, 2015.

2On April 27, 2015, the applicant filed a Request for Reconsideration. He said that the reason that he did not appear at the hearing was that his previous representative, Matt Ferguson, a paralegal at a Community Legal Clinic, to whom the Notice of the Hearing was sent by the Tribunal, did not clearly inform him of the hearing and that although he tried to obtain clarification of what he was to do he was not successful.

3The applicant’s Request for Reconsideration was delivered to the respondent by the Tribunal which was asked to make any submissions on the Request by May 27, 2015.

4The respondent filed submissions on May 25, 2015, arguing that the Request for Reconsideration should be denied because the applicant had notice of the hearing and that it was his fault if he was not properly aware of the notice. The respondent referred to other cases of the Tribunal, which the respondent felt were relevant.

5On June 4, 2015, the Tribunal received a Reply to the respondent’s submissions from Mr. Ferguson. He indicated that at the time he stopped representing the applicant, shortly before the scheduled summary hearing, he thought that the applicant was aware of the summary hearing date. The balance of the Reply is concerned with submissions about case law submitted by the respondents, and additional case law that Mr. Ferguson thought relevant.

6On June 9, 2015, the respondent sent an email asserting that Mr. Ferguson’s submissions of June 4, included “new facts” that were not included in the applicant’s original Request for Reconsideration. The respondent asked that it be permitted to make a further reply to respond to the new facts.

7Mr. Ferguson responded by email that he had not included any new facts in his submissions.

8On June 11, 2015, the respondent reiterated its position that Mr. Ferguson had included new facts and referred to information from Mr. Ferguson about the transfer to the applicant of the file and his impression that the applicant was seeking a new representative and was aware of the hearing date.

9On June 16, 2015, the Tribunal issued Decision 2015 HRTO 798. It allowed the applicant's Request for Reconsideration, finding that the applicant did not receive Notice of the hearing because the notice was sent to his representative and not to the applicant, and also finding that it is clear that the applicant did not intend to abandon the Application. The Decision did not specifically refer to June 9, 2015 emails from the parties or the June 11, 2015 submissions from the respondent.

10On July 2, 2015, the respondent filed a Request for Reconsideration of Decision 2015 HRTO 798. The respondent asserts that its fundamental right to be heard was denied because it was not given an opportunity to reply to the alleged new facts in Mr. Ferguson’s letter of June 4, 2015. It also submits that the Decision was wrong to conclude that the applicant did not receive Notice of the preliminary hearing.

11In the meantime, the Tribunal proceeded to schedule another summary hearing by telephone conference call and that hearing is now scheduled for September 21, 2015.

Conclusions

12Rule 26.5 of the Tribunal’s Rules of Procedure states:

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.

13The respondent asserts that Decision 2015 HRTO 798 should be reconsidered because the respondent was denied the right to respond to allegedly new information provided on the applicant’s behalf by Mr. Ferguson.

14It is to be noted that Decision 2015 HRTO 798 was not a decision on the merits of the Application. It only allowed for the scheduling of another preliminary hearing. The issue in the preliminary hearing is whether the Application should be dismissed for delay.

15With respect to the respondent’s submission that it was denied the right to be heard because it was not afforded the right to make submissions in regard to Mr. Ferguson’s letter of June 4, 2015, I find that this is not a basis to reconsider the Decision. While I do agree that the respondent’s request to make further submissions should have been acknowledged, I do not agree that Mr. Ferguson’s letter contained any significant information that was not provided in the applicant's original Application for Reconsideration and that would have triggered a right to make further submissions.

16The respondent’s Request for Reconsideration also argues that the Decision was wrong to conclude that the applicant did not receive notice of the preliminary hearing because he was in possession of the file that he received from Mr. Ferguson which included the Notice. This is a re-statement of submissions already made by the respondent in its original response to the applicant’s Request for Reconsideration. The reconsideration process is not intended to provide a party with another opportunity to re-argue things that have already been argued.

17I conclude that the respondent has not provided a basis to reconsider Decision 2015 HRTO 798. The preliminary hearing scheduled for September 21, 2015 will accordingly proceed.

18As noted in previous communications from the Tribunal, the issue in the preliminary hearing is whether the Application should be dismissed for delay. This arises because of section 34 of the Code which provides:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

19In this case, the Application was filed on July 25, 2014. The events described in the Application appear to have occurred more than one year before that date. At the preliminary hearing, the applicant will have an opportunity to explain whether in fact there was a discriminatory event that occurred within one year of July 25, 2014, or, if there was not such an event, to explain whether there is a good faith explanation for the delay and whether the respondent will experience substantial prejudice because of the delay. The respondent will have the opportunity to make submissions on the same issues.