HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Malek Bouraoui
Applicant
-and-
Ottawa Valley Cleaning and Restoration
Respondent
RECONSIDERATION DECISION
Adjudicator: Geneviève Debané
Indexed as: Bouraoui v. Ottawa Valley Cleaning and Restoration
WRITTEN SUBMISSIONS
Ottawa Valley Cleaning and Restoration, Respondent
Debbie Lucas, Representative
PROCEDURAL HISTORY
1The applicant filed an Application in French on October 21, 2013.
2On October 31, 2013 a Notice of Application was sent to the respondent in English to the attention of “Jesse”. This Notice advised the respondent that it had to file a Form 2, Response by no later than December 5, 2013.
3On December 11, 2013, the Tribunal issued a “No Response to the Notice of Application” letter, which directed that the respondent had to file a Response by January 10, 2014. This letter, amongst other things, stated:
An Application to the HRTO starts a legal proceeding. A finding that a violation of the Code has occurred may lead to various orders, including monetary compensation, other forms of restitution to the applicant, and orders to take action to promote compliance with the Code. Failure to file a Response or participate in a HRTO proceeding may lead to orders against individual and corporate respondents without their participation. The respondent’s(s’) attention is drawn to Rule 5.5 of the HRTO’s Rules of Procedure which reads as follows:
5.5 Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:
a) deem the Respondent to have accepted all of the allegations in the Application;
b) proceed to deal with the Application without further notice to the Respondent;
c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;
d) decide the matter based only on the material before the Tribunal.
The applicant has provided a mailing address and an email address for the respondent. As such, a copy of this letter is being sent to the respondent by regular mail, courier and email.
If the respondent wishes to participate in this proceeding, it shall file a Response with the HRTO by January 10, 2014, together with an explanation of why the Response was not filed in accordance with the Notice of Application. If a Response is not received, the HRTO may proceed without further notice to the respondent and may take any or all of the steps set out in Rule 5.5.
4On February 4, 2014, the Tribunal issued an Interim Decision, 2014 HRTO 164, which ordered at paragraphs 7 and 8:
The Tribunal makes the following Orders:
a. The respondent is deemed to have accepted all of the allegations set out in the Application; and
b. The respondent is deemed to have waived all rights to notice or participation in these proceedings.
Therefore, the Applications will proceed without further notice to the respondent.
5A telephone hearing was convened on August 13, 2014. The respondent was not in attendance.
6On September 3, 2014 the Tribunal issued Decision 2014 HRTO 1303 which allowed the Application and ordered a remedy of $8,000 dollars for breaches of the Code.
7On September 29, 2014, a person named Debbie Lucas filed a Request to Reconsider the Decision. The applicant has not been directed to file a response to the respondent’s Request to Reconsider.
GROUNDS FOR RECONSIDERATION
8The basis of the Request to Reconsider is that the respondent did not receive notice of the proceeding or hearing and that there are new facts or evidence that could potentially be determinative of the case that could not have been reasonably obtained earlier. The respondent’s submissions include the following allegations:
a. That the respondent’s principal Mr. Jesse Simpson has been incarcerated since January 12, 2014 and he has been unable to respond to the allegations;
b. That the Application was filed in French and they have no knowledge of the French language;
c. That the respondent has not been in existence since June 2013 and that the applicant did not drop off his resume with them and that the applicant’s story was fabricated; and
d. That Jesse Simpson’s phone was “hacked into” by someone else.
9The respondent also includes a response to every paragraph of the Decision, in which it explains its version of the events.
RECONSIDERATION
10Under 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.
11The 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 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.
12As 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.
THE NOTICE ISSUE
13It is a basic principal of administrative law that parties are entitled to notice and the Tribunal will reconsider a Decision, if a party is able to establish that they did not receive notice of a proceeding and/or hearing. Rule 26.5(b) specifically addresses this issue.
14The respondent relies on two reasons in support of the allegation that they did not receive notice. The first reason is that the principal of the respondent was incarcerated and could not respond. The second reason is that since the Application was filed in French, the respondent could not respond because it has “no knowledge” of that language.
15I find that the respondent did in fact receive Notice of the Application and simply chose not to participate in the proceedings. The respondent is trying to use the fact that its principal was incarcerated as an excuse for its non-participation in this proceeding. However, I note that the respondent had to file its response on or before December 5, 2013, which was over a month prior to Mr. Simpson’s arrest and this deadline was extended to January 10, 2014. The Response was therefore due two days prior to Mr. Simpson’s arrest and he chose not to file a Response.
16The fact that a party is incarcerated is not an excuse for its failure to participate in the Tribunal’s proceedings. The Tribunal has been able to ensure in the past that parties who are incarcerated are able to fully participate in its proceedings. Mr. Simpson could have delegated the responsibility of responding to this matter to another individual. I note that the respondent was able to file quite a comprehensive Request to Reconsider through the above-named representative.
17With respect to the assertion that the respondent does not understand French and therefore could not respond, I make the following observations. Pursuant to the Tribunal’s Rules, a party may file any document in either French or English. In this case, the Application was relatively short and the text messages were reproduced in English, the language that they were sent in. The Tribunal did issue all of its correspondence to the parties in both French and English. The Tribunal does not translate documents. If a party requires more time to respond to an application then the proper process is to request an extension of time to respond. It is not appropriate for a respondent to completely ignore a proceeding which has been commenced against it in French.
18Further, I do not believe that the respondent did not understand the Application because it was filed in French. In the Decision, I dealt with the issue of whether a telephone call, made by Mr. Simpson to the applicant, shortly after the respondent was served, constituted a reprisal under the Code. In the Request to Reconsider the respondent concedes that Mr. Simpson called the applicant and adds: “We note that the information provided by Mr. Bouraoui is silent on the fact that Jesse called to advise Mr. Bouraoui that he did not call or write the texts. Jesse was angry about the situation he had been put in.” This is a clear indication that the respondent understood the nature of the allegations that had been made against it, even though the Application was filed in French. It also supports the fact that the respondent did have notice of the proceeding and could simply have filed a Response in English explaining its version of the events.
19In these circumstances, I find that there is no basis to reconsider the Application on the basis that there was a lack of notice in accordance with Rule 26.5(b) of the Tribunal Rules.
NEW FACTS
20The respondent has not raised any new facts which could not have been reasonably available to it one year ago when its Response should have been filed. There is a lot of information provided in the Request to Reconsider which is irrelevant because they address the merits of the Application. All of this information and defences were readily available to the respondent. A Request to Reconsider is not an opportunity to make arguments which should have been raised during the hearing of the matter. Though the respondent now wishes to make its defence known, it is simply too late to do so.
OTHER ISSUES
21I wish to address one further issue raised by the respondent, which is that the Decision contained the private information of the respondent and that as a result it has been approached by the media and the public. The Decision did not contain any private information. The Decision only refers to the business name and Mr. Simpson’s first name. If any private information was obtained it was done so independently of the Tribunal’s processes. However, the fact that the Decision has garnered a lot of negative publicity for the respondent is not a basis to reconsider the Decision.
22The Tribunal is committed to a fair, just and expeditious resolution of matters before it. In this case, the Tribunal has heard this matter and issued its Decision. The Tribunal stated in M.K. v. 1217993 Ontario, 2011 HRTO 1362 at paras. 27 and 28:
As noted in Taranco v. Michedes, 2009 HRTO 1439:
The public has a significant interest in the finality of Tribunal decisions, as do parties who appear before the Tribunal. When parties participate in the hearing of a Complaint before the Tribunal, they often invest significant time and resources in presenting their cases. Indeed, this is so, in part, because parties know (or ought to know) that once the Tribunal makes a decision, barring the exceptional circumstances which may justify reconsideration, the decision will be final. “Once the parties to a case 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.” (Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34 (Can LII).
The public also has an interest in the Tribunal expending its resources wisely and fulfilling its mandate under the Code to resolve complaints in a fair, just and expeditious manner.
(at paras 14 and 15)
Although it could never, in my view, outweigh any real issue of fairness to the individual respondent, an additional consideration here is a systemic one. It would be wrong to send a message to respondents who simply choose not to participate despite being able to do, that they can simply sit back and await a decision, taking action only if that decision goes against their interests.
23The respondent had the opportunity to present its case with respect to the Application. The respondent must accept the consequences of its failure to participate in these proceedings.
ORDER
24I find that the respondent has not met the burden of establishing that it did not receive notice of the proceeding or hearing; and that there are no new facts or evidence that could potentially be determinative of the case that could not have been reasonably obtained earlier.
25The respondent’s Request to Reconsider the Decision is dismissed.
Dated at Toronto, this 6th day of January, 2015.
“Signed by”
Geneviève Debané
Vice-chair