Washington v. Soul Restaurants Canada Inc., 2015 HRTO 1519

Human Rights Tribunal of Ontario

Between:

Dayton Washington Applicant

-and-

Soul Restaurants Canada Inc. and Jessica Chorazy Respondents

Interim Decision

Adjudicator: Dawn J. Kershaw Date: November 12, 2015 Citation: 2015 HRTO 1519 Indexed as: Washington v. Soul Restaurants Canada Inc.

Written Submissions

Dayton Washington, Applicant Self-represented

Soul Restaurants Canada Inc., Respondent Kathleen Amizial, Representative

Introduction

1This Interim Decision addresses one of the respondents' request to reconsider a previous decision of the Tribunal finding them in default. For the reasons below I would grant that request and set aside the previous order of the Tribunal.

Procedural History

2By Case Assessment Direction ("CAD") issued April 2, 2015, the Tribunal directed that this application be set down for a summary hearing to consider whether the application should be dismissed as having no reasonable prospect of success. At the same time it directed the respondents to file full Responses to the Application within 35 days. Although only partial Responses were filed, the summary hearing went ahead.

3On August 4, 2015 the Tribunal issued Interim Decision, 2015 HRTO 1031 ("summary hearing interim decision"), declining to dismiss the application as having no reasonable prospect of success. Each of the respondents was also ordered to file a full Form 2 Response to the Application within 35 days of receiving that Interim Decision (which would have been due on approximately September 13, allowing for five days deemed delivery), and the applicant and the personal respondent were directed to advise the Tribunal by no later than October 2 if they were interested in participating in mediation. As noted above, prior to the summary hearing, the respondent restaurant had filed only a partial Form 2 Response which stated that it was not intended to respond to all of the applicant's allegations. While the personal respondent filed a full Response in response to the directions in the summary hearing interim decision, the respondent restaurant did not, and did not otherwise communicate with the Tribunal.

4The Tribunal then issued Interim Decision, 2015 HRTO 1267, in which the respondent restaurant was deemed to have accepted all of the allegations set out in the Application and to have waived all rights to notice or participation in these proceedings. This Interim Decision stated the Application would proceed without further notice to the respondent restaurant.

5On September 23, 2015, the respondent restaurant filed a Request for Reconsideration of the Interim Decision ("Request"). The Tribunal sought the applicant's submissions, which he provided on October 17, 2015.

The Request for Reconsideration

6The respondent restaurant submits while it received the summary hearing interim decision, it believed it had until October 2, 2015 to decide if it wished to participate in mediation, and "a decision would be made at that point". The respondent restaurant submits it did not interpret the summary hearing interim decision as requiring it to file a Form 2 Response as it had done so already.

7It submits it realized its error only when it received the subsequent interim decision in which it was deemed to have accepted all the allegations in the Application. It then contacted the Tribunal immediately to ask about its options.

8The respondent restaurant submits it takes the allegations very seriously and did not intend to waive its rights. It intended always to continue to respond to the allegations. It submits there is no prejudice to the applicant if the respondent restaurant is permitted to continue to participate in the proceedings.

9The applicant opposes the respondent restaurant's Request. While I have considered them, it is unnecessary to reproduce all of his submissions on this issue.

10However, amongst other things, the applicant disputes the respondent restaurant's contention that there will be no prejudice to the applicant if the Request is granted. He contends that if the respondent restaurant's Request is granted, a hearing will be further delayed. He submits that granting the Request would not deter others from making the same mistake the respondent restaurant made in failing to carefully read the summary hearing interim decision.

Analysis and Decision

11Although the current request was filed as a Request for Reconsideration under Rule 26.1, it is unclear if the default decision falls within the scope of the Tribunal's reconsideration rules which apply to "final" decisions of the Tribunal.

12A similar situation arose and was dealt with by the Tribunal in Hibbert v. Weber Marking Systems of Canada, 2013 HRTO 897. In that case a default finding was varied by the Tribunal at a similarly early stage in the proceeding on the basis that in the particular circumstances of that case, and where there was no evidence of prejudice to the applicant, it would not have been fair to deny the individual respondents the opportunity to file a full response. While it does not seem to have been directly raised by the parties, the Tribunal also did not consider that issue within the reconsideration rule. One conclusion to draw from that is that the default finding – in the absence of any decision on the merits of the applicant's claims – did not dispose of some or all of the central issues in the application as between the parties (see Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 at para. 41).

13In my view, if a decision or order of the Tribunal is interlocutory and not "final" in nature (and so does not fall within the scope of its reconsideration rules), then so long as the Tribunal otherwise continues to have jurisdiction (i.e. is not functus officio) it remains within the Tribunal's discretion to vary it in accordance with its general powers under the Human Rights Code, R.S.O. 1990, c. H.19, as amended, the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, and its own Rules of Procedure. While it will be rare for the Tribunal to vary an earlier order, where there are good reasons for doing so, such as procedural fairness, it may.

14In this case, the respondent restaurant was not represented during these events, and I find no reason to doubt that the respondent restaurant fully intended to continue its participation in this matter. It clearly has shown its interest in these proceedings from the outset, filing a Form 2 Response and participating in the summary hearing. It acted very quickly once it received the default decision. I also accept that the respondent restaurant may not have understood that it needed to file a full Form 2 Response, given that it had filed a Form 2 Response already (notwithstanding they initially characterized is as a partial Response).

15There is no prejudice to the applicant because a hearing date is set for March, 2016, and this interim decision should not delay that. Overall, I find that in these circumstances it would not be fair to deny the individual respondents the opportunity to fully respond to and defend against this Application.

Order and Next Steps

16Interim Decision 2015 HRTO 1267, in which the respondent restaurant was deemed to have accepted all of the allegations set out in the Application, and to have waived all rights to notice or participation in these proceedings, is set aside.

17The respondent restaurant shall deliver to the applicant and the personal respondent a full Form 2 Response and file it and a Form 23 Statement of Delivery with the Tribunal by no later than 21 days from the date of this decision. If it now wishes to rely only on its previously filed Response it must confirm this by the same date.

18The applicant shall deliver to the respondents any amended Form 3 Reply and file it and a Form 23 Statement of Delivery by no later than December 19, 2015.

19The date for Disclosure of Arguably Relevant Documents (Rule 16.1) as set out in the October 5, 2015 Notice of Hearing is changed from October 26, 2015 to December 14, 2015. The date for the Disclosure and Filing of Witness Statements and Documents to be relied upon remains unchanged and is February 2, 2016.