Hammadieh v. Ontario (Community Safety and Correctional Services), 2015 HRTO 1144

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Randa Hammadieh Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services Respondent

RECONSIDERATION DECISION

Adjudicator: Douglas Sanderson Date: August 28, 2015 Citation: 2015 HRTO 1144 Indexed as: Hammadieh v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Randa Hammadieh, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Respondent Tanya Chin, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of race, ancestry, ethnic origin, sex, gender identity, marital status and record of offences.

2By letter dated February 18, 2015, the Tribunal sent the applicant a Delivery of Response and Notice of Request to Dismiss that advised her that the respondent requested dismissal of the Application for delay. The Tribunal directed the applicant to file a Reply to the Response (Form 3) including complete submissions in response to the respondent’s request to dismiss by March 4, 2015.

3The letter warned the applicant that if she did not file written submissions by the specified date, then the Tribunal would make its decision based only on the information in the Application or may consider the failure to respond to be an abandonment of the Application and dismiss it for that reason. The applicant did not file submissions as directed and the Delivery of Response and Notice of Request to Dismiss letter was not returned. As a result, the Tribunal found that the applicant had abandoned the Application and dismissed it. See Hammadieh v. Ontario (Community and Correctional Services), 2015 HRTO 398 (the “Decision”), which was released on March 26, 2015.

4On April 22, 2015 the applicant filed a Request for Reconsideration of the Decision. The Tribunal directed the respondent to provide written submissions regarding the Request, which they filed on July 31, 2015.

Analysis and Decision

5The circumstances in which Reconsideration may be granted are set out in Rule 26.5:

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.

6The 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.

7The applicant relies on Rule 26.5(a) and submitted that she did not receive the Delivery of Response and Notice of Request to Dismiss letter and was therefore unaware that she was required to make written submissions. The applicant submitted that she had no intention of abandoning her Application.

8The respondent opposes the Request arguing that there is no basis to conclude that the applicant did not receive the February 18, 2015 letter.

9The 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. In that case, the Court determined the applicant had not received a notice of hearing on the basis of the applicant’s assertion that she had not received it. The Tribunal has found 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. See Rose v. Mackenzie Health, 2015 HRTO 1029.

10In this case, the Tribunal’s records indicate that she has been careful to update her mailing address, which changed twice before the Decision on March 26, 2015, and had followed up with the Tribunal a number of times regarding the status of her case. The applicant filed her Request for Reconsideration in a timely manner. While the respondent’s scepticism is understandable, there is no particular reason to question the applicant’s assertion that she did not receive the Tribunal’s letter of February 18, 2015.

11In these circumstances, the Request for Reconsideration is granted and the Decision set aside.

12The Tribunal shall resend the Delivery of Response and Notice of Request to Dismiss and the respondent’s Response to the applicant along with this Reconsideration Decision. The applicant must respond to the respondent’s request to dismiss the Application as directed below.

Order

13The Tribunal orders as follows:

1. The Request is granted and Decision 2015 HRTO 398 is set aside;

2. The Tribunal shall resend the Delivery of Response and Notice of Request to Dismiss and the respondent’s Response to the applicant along with this Reconsideration Decision; and,

3. The applicant shall file a Reply to the Response (Form 3) including complete submissions in response to the respondent’s request to dismiss, as directed in the Delivery of Response and Notice of Request to Dismiss by no later than September 18, 2015;

4. If the applicant does not file written submissions by September 18, 2015, then the Tribunal will make its decision based only on the information in the Application or may consider the failure to file a Reply as an abandonment of the Application and dismiss it for that reason.

14I am not seized.