HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Richard Cull
Applicant
-and-
Alliance Forming Ltd.
Respondent
DECISION
Adjudicator: David Muir
Indexed as: Cull v. Alliance Forming Ltd.
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on October 14, 2010.
2In Interim Decision 2011 HRTO 383 issued on February 22, 2011, the Tribunal deferred proceeding with this Application pending the conclusion of an ongoing proceeding under the WSIA. In a further Interim Decision 2012 HRTO 775 issued on April 17, 2012 the Tribunal confirmed its earlier determination that it was appropriate to defer this Application.
3On January 17, 2014 the Tribunal wrote to the applicant and respondent. The applicant was asked to inform the Registrar in writing within 30 days of the date of the letter whether the other proceedings remained ongoing and to indicate when they were expected to be completed. The letter went on to warn the applicant that failure to provide the requested information might result in the Tribunal dismissing the Application as abandoned. The letter was sent by email and regular mail.
4The applicant did not respond to the Tribunal’s January 17, 2014 letter. The Tribunal’s letter to the applicant was not returned as undeliverable.
5In Decision 2014 HRTO 417 issued on March 24, 2014 the Application was dismissed as abandoned. The Decision was sent to the applicant by email and regular mail.
6On November 26, 2014 the applicant filed a Request for Reconsideration.
7In his Request the applicant argues that the Request should be granted because through no fault of his own he did not receive the correspondence sent to him on January 17, 2014 seeking an update on the status of the other proceeding.
8The applicant argues that he did not receive the Tribunal’s correspondence of January 17, 2014 and could not access his email as his computer was affected by a virus or viruses early last year. The applicant asserts that he was unable to access his email for several months. The applicant asserts that he diligently checks his mail because this case is important to him. He also states that he has been waiting for the WSIAT decision which he received approximately a week prior to filing this Request. The applicant alleges that he only learned of the Decision when he contacted the Tribunal after the WSIAT decision was released and was told that it had been dismissed.
DECISION
9Under 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.
10The 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 June 2008). 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.
11The 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.
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.
13I find that the applicant has not met the burden of establishing that it would be appropriate to reconsider the Decision. As noted by the respondent the Request is significantly out of time having been filed many months after the Decision was released. The applicant claims that he did not receive the January 17, 2014 letter but offers no real explanation for why the email, his preferred method of communication, was not received. I also note that both the January 17, 2014 letter and Decision were sent by regular mail as well as email. Neither of the mailings were returned to the Tribunal as undeliverable. The applicant provides no explanation for why neither piece of correspondence was received by him. In my view the applicant has failed to show that through no fault of his own he did not receive the Tribunal’s correspondence of January 17, 2014 or the Decision issued on March 24, 2014.
14For these reasons the Request for Reconsideration is denied.
Dated at Toronto this 28th day of April 2015.
“Signed by”
David Muir
Vice-chair