McIntosh v. Shred-It, 2015 HRTO 761

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kevin McIntosh

Applicant

-and-

Shred-it

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: June 9, 2015

Citation: 2015 HRTO 761

Indexed as: McIntosh v. Shred-It

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In 2011 HRTO 1527, issued on August 16, 2011, this Application was deferred pending the conclusion of another proceeding. The applicant subsequently sought reactivation of the Application, which was denied in 2012 HRTO 420, issued on February 28, 2012.

3On July 22, 2014, the Tribunal wrote to the parties directing the applicant to inform the Registrar in writing before August 22, 2014 whether the other proceedings remained ongoing and, if possible, 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.

4The applicant did not respond to the Tribunal’s July 22, 2014 letter. The Tribunal’s letter to the applicant was not returned to the Tribunal as undeliverable

5On October 28, 2014, the respondent wrote to the Tribunal, copied to the applicant, inquiring of the status of the Application in light of the applicant’s non-response to the July 22, 2014 letter above.

6In the circumstances, the Application was dismissed as abandoned in 2014 HRTO 1714 (the “Decision”).

7The applicant has filed a Request for Reconsideration of the Decision.

8The applicant argues that he instructed the Tribunal to contact him by email at some unspecified time. The applicant also argues that the “notice” the Tribunal sent to him should have been sent by registered mail so that there would have been a “positive or negative” result. The applicant also argues that the other proceeding is ongoing.

9The respondent was invited to make submissions in response to the Request but has not done so and the time for doing so has passed.

10The Request for Reconsideration is denied.

11Under 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.

12The 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.

13The 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.

14As 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.

15The applicant makes no reference to the Tribunal’s Rules but his argument seems to engage Rule 26.5 (b) that it is through no fault of his own he did not receive the Tribunal’s correspondence directing him to provide a status update of the other proceeding.

16The Request is denied. I am not satisfied based on all the material available to me that the applicant did not receive the Tribunal’s correspondence which directed him to provide a status update of the other proceeding, failing which the Application might be dismissed as abandoned. The applicant argues that he instructed the Tribunal to send him material by email. There is no record of such an instruction and the record of the communications with the applicant indicates that the Tribunal has communicated with the parties by both email and regular mail

17without difficulty.

18On March 3, 2012, the applicant sent an email to the Tribunal as follows:

Please remove Fredrick Karl Jena as a contact on this file. He passed away November 2011, I had notified you before.

19On December 17, 2012, the applicant updated his mailing address. In this communication he makes no reference to a need to have material communicated to him by email.

20On January 2, 2013, the Tribunal wrote to the parties asking the applicant to advise of the status of the other proceeding. The correspondence was sent by regular mail only. On January 14, 2013, the applicant responded to this correspondence. The Application remained deferred.

21On July 22, 2014, the Tribunal wrote to the parties asking the applicant to advise of the status of the other proceeding. As indicated above the applicant did not respond to this correspondence. This correspondence was sent by regular mail and was not returned to the Tribunal.

22On October 28 and November 25, 2014, the respondent wrote to the Tribunal and asked whether the Tribunal had dismissed the Application as abandoned in the circumstances. Both of these letters were copied to the Applicant.

23On November 27, 2014, the Decision dismissing the Application was released.

24Although the applicant complains about the Tribunal’s means of communicating with him, he does not actually claim that he did not receive the correspondence dated July 22, 2014; as such there is no basis to conclude that he did not receive it. This is particularly so as it is clear that previous correspondence sent to the same address was received by the applicant. In all of the circumstances I am not satisfied that the applicant did not receive the Tribunal’s correspondence and accordingly there is no basis to reconsider the Decision.