Chambers v. Whole Foods Market, 2015 HRTO 645

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Althea Chambers

Applicant

-and-

Whole Foods Market

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: May 15, 2015

Citation: 2015 HRTO 645

Indexed as: Chambers v. Whole Foods Market

WRITTEN SUBMISSIONS

Althea Chambers, Applicant

Self-represented

Whole Foods Market, Respondent

Lia Chiarotto, Counsel

1On March 18, 2015, the Tribunal issued its Decision in this Application, 2015 HRTO 346, dismissing the Application as abandoned. The applicant has asked the Tribunal to reconsider its Decision.

2On October 17, 2014 the Tribunal issued a Notice of Mediation to the parties confirming that mediation of the Application would take place on February 17, 2015. The Notice was mailed to the applicant’s address at the address provided in the Application and was not returned as undeliverable.

3The applicant did not attend the scheduled mediation session on February 17, 2015 and did not communicate with the Tribunal to explain the failure to attend.

4On February 18, 2015 the Tribunal wrote the applicant directing that the applicant advise it of her intentions with respect to the Application by February 28, 2015. The Tribunal’s correspondence advised as follows:

The parties consented to mediate this Application. The Human Rights Tribunal of Ontario (HRTO) scheduled the mediation for February 17, 2015. The applicant and respondent(s) were notified of the mediation date by Notice dated October 17, 2014.

The applicant failed to appear at the scheduled mediation, and did not advise the HRTO prior to the scheduled date or at any time after the mediation date that he/she could not attend.

By February 28, 2015 the applicant must advise the HRTO and the respondent(s) in writing whether she intends to proceed with this Application.

The HRTO draws the applicant’s attention to Rule 5.4 of the HRTO’s Rules of Procedure, which states:

5.4 The Tribunal may finally determine an Application without further notice to any person who cannot be contacted by the Tribunal according to the contact information provided to the Tribunal by that person.

If the applicant intends to pursue the Application, it will be placed in the queue to be scheduled for hearing.

If the applicant does not respond to this letter by [10 DAYS], the HRTO may deem the Application to be abandoned and dismiss the file.

[emphasis in original]

5On March 18, 2015 I issued the Decision in which I dismissed the Application as abandoned.

6The applicant filed her Request for Reconsideration on April 1, 2015. On April 7, 2015 the Tribunal sought submissions on the Request from the respondent. On April 15, 2015 the respondent filed detailed submissions and case-law opposing the applicant’s Request.

7On April 17, 2015 the applicant filed additional submissions responding to the respondent’s submissions. However, these submissions fail to address the issues identified by the respondent and instead focus on the merits of the Application.

Decision

8Under 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.

9The 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.

10The 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.

11As 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.

12In her Request the applicant relied on Rule 26.5 (b), that is, through no fault of her own she did not receive Notice of the mediation. There is little to no explanation provided by the applicant with respect to her allegation that she did not receive notice at the mailing address she provided, other than relying on what she alleged to be the “instability, [and] unreliable access of traditional mail” and that she was relying on email communication which has been the “standard of communication” in this matter.

13The respondent opposes the Request arguing that there is no basis to conclude that the applicant did not receive the Notice of Mediation or the letter of February 18, 2015 asking what her intentions were with respect to the Application.

14I am not satisfied that the applicant has established sufficient grounds to reconsider the Decision. The applicant asserts that she did not receive proper notice of the issue of the mediation because she was relying on email. However she does not assert that she did not receive the Notice in the mail or the follow up letter sent to her on February 18, 2015. Neither was returned to the Tribunal as undeliverable.

15The applicant also argues that email communication was the standard in this case. This is not correct. On July 14, 2014 the applicant sent to the respondent, copied to Tribunal, a change of address and asked that correspondence be forwarded to the mail address provided. I also note that much of the correspondence in the initial pleadings stage of this proceeding was by regular mail alone. None of the material sent to the applicant by regular mail has been returned as undeliverable.

16For these reasons I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Interim Decision. The Request is denied.