Kenan Galoglu v. A Wesley Paving Ltd., 2015 HRTO 1723

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenan Galoglu Applicant

-and-

A Wesley Paving Ltd. Respondent

RECONSIDERATION DECISION

Adjudicator: Laurie Letheren Date: December 22, 2015 Citation: 2015 HRTO 1723 Indexed as: Galoglu v. A Wesley Paving Ltd.

WRITTEN SUBMISSIONS

Kenan Galoglu, Applicant Moira Wallace, Counsel

A Wesley Paving Ltd, Respondent Chantel Goldsmith, Counsel

INTRODUCTION

1The hearing in this matter was scheduled for September 21 and 22, 2015, at 9:30 am.

2Prior to the commencement of the hearing on September 21, 2015, counsel for applicant contacted the HRTO to indicate that she would be 30 minutes late in arriving.

3I advised the respondent, respondent’s counsel, witness for the respondent and the language interpreter who were all in attendance in the hearing room before 9:30 am that the applicant’s counsel would be 30 minutes late and I would resume the hearing at 10:00 am.

4When I returned to the hearing room at 10:00 am, I was advised by applicant’s counsel that the applicant was not present at the hearing. The applicant was on the phone with the interpreter who advised me and applicant’s counsel that the applicant was not aware that he had a hearing that day. Through the interpreter, I asked where the applicant was at that time. Through the interpreter, I was advised that he was within the City of Toronto near the Downsview subway station. Through the interpreter, I directed the applicant to come right to the hearing and that I would wait until 11:00.

5I advised all present in the hearing room that I would resume the hearing at 11:00 am. I asked applicant’s counsel if her other witness was here and she said she would need to make a call.

6At 11:00 am, I resumed the hearing and the applicant was still not present.

7At 11:05 am, I requested counsel to make submissions.

8Applicant’s counsel provided no clear explanation for the applicant’s continued absence. She submitted that there is a language barrier between her and her client and that she expects that this may be the reason why he is not present at the hearing. She stated that her assistant had sent the notice of hearing. She believed that the applicant was on his way and that we wait another 10 minutes.

9Respondent’s counsel requested that the matter be dismissed as abandoned as she, the respondent and the witness had all travelled, taken time off work and had been present and waiting since 9:15 am.

10I remained in the hearing room after the parties had left. At 11:15 the applicant has still not attended the hearing room.

11By decision 2015 HRTO 1256 (the “Decision”), released on September 21, 2015, I dismissed this Application as abandoned because the applicant failed to attend the hearing on September 21, 2015.

12The applicant filed a Request for Reconsideration of the Decision on October 19, 2015.

13In his Request for Reconsideration, the applicant states that, through no fault of his own, he did not receive notice of the hearing dates or, if he did receive it, he did not understand it because English is not his first language.

14Applicant’s counsel has stated that she believes the applicant may not have received the Notice of Hearing. As an explanation for why it may not have been received, applicant’s counsel indicates that the former employee of her office who was responsible for notifying clients of important dates, such as hearings, appears to have failed in her responsibilities on the applicant’s file as well as other client files.

15The applicant’s counsel indicates that at 9:56 am, on the morning of the hearing, she had a telephone conversation with the applicant through an interpreter. The applicant advised counsel that he and his witness had not been aware of the hearing date.

16The applicant’s counsel advises that the applicant did appear at the Tribunal at 11:12 am.

17The respondent opposes reconsideration. It states that it will be severely prejudiced if the hearing on the merits of the Application is allowed to proceed. The respondent submits that its employees have dedicated an enormous amount of time to defend the Application and that many of the employees have experienced extreme stress.

18In addition, the respondent submits that since the Application was dismissed, the respondent’s business has been sold and this Application was not considered when the sale was negotiated.

DECISION

19The Request for Reconsideration is allowed as it would not be fair and just to deny the applicant the reconsideration. I accept that for reasons beyond his control, he was not advised of the hearing dates.

ANALYSIS

20The Tribunal sent a Notice of Hearing to the parties on April 7, 2015. As is the Tribunal’s practice when parties are represented, the Notice was sent to the applicant’s counsel. The Notice clearly indicated the date, time and place for the hearing.

21I accept that the applicant’s counsel received a Notice of Hearing in accordance with the Tribunal’s rules; however the applicant was not advised of the hearing by his counsel. Although he was late, I accept that the applicant appeared at the Tribunal on September 21, 2015, after I had ended the hearing. I, therefore accept that he had not intended to abandon his Application.

22It is unfortunate that applicant’s counsel had not contacted him and his witness in the days prior to the September 21, 2015 hearing date to prepare them for the hearing and take the opportunity to confirm that they were aware of the hearing date. This is particularly so given that the applicant’s first language was not English and counsel was aware of his need to have a person who was more proficient in English to assist with communication between the applicant and his counsel. It is also unfortunate that once I advised all those in the hearing room on September 21, 2015 that I would provide the applicant with more time to attend at the Tribunal and that the hearing would resume at 11:00 am, applicant’s counsel did not engage the services of the interpreter and call her client to ensure that he was aware that he needed to be in the hearing room by 11:00 am. However, I find that it would not be fair and just to penalize the applicant for his counsel’s practice.

23I acknowledge the inconvenience that is caused to the respondent and the new business owner. The liability for any proven Code breach will need to be determined.

24However, I find the applicant, through no fault of his own, was not informed of the hearing date by his counsel. As the Tribunal has determined in other applications, it would not be fair and just to deprive the applicant of his right to proceed with his Application because of his counsel’s inadvertence. See Cushnie v. Toronto Police Services Board, 2013 HRTO 63. As the Divisional Court stated in Harvey v. Evans Bus Lines, DV-14-2060, unreported endorsement June 9, 2015, the duty of fairness requires the Application be allowed to proceed in circumstances such as this.

25Applicant’s counsel is reminded of Tribunal Rule A9.2 which states that representatives are responsible for conveying the Tribunal’s communications and directions to their client and for communicating the Tribunal's expectations to their client. The Tribunal expects that counsel will ensure that their clients are fully aware of dates and the Tribunal’s process and will respect that process as the Application proceeds.

ORDER

26The Request for Reconsideration is allowed.

27The respondent is directed to provide the new business owner with a copy of the Application and, if the respondent considers it appropriate, it may ask to amend the Response to name the new owner as an additional respondent.

28The Registrar will schedule new hearing dates for this Application.