HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Irby Shepherd

Applicant

-and-

Intercon Security Ltd.

Respondent

DECISION

Adjudicator: Brian Cook

Date: June 16, 2015

Citation: 2015 HRTO 798

Indexed as: Shepherd v. Intercon Security Ltd.

WRITTEN SUBMISSIONS

Irby Shepherd, Applicant

Mathew Ferguson, Paralegal

Intercon Security Ltd./GardaWorld, Respondent

Mathieu Duceppe, Counsel

1The applicant has requested reconsideration of Decision 2015 HRTO 512, dated April 22, 2015 (“the Decision”). The Decision dismissed the applicant's Application as abandoned when the applicant failed to appear at a scheduled telephone conference call hearing.

2The telephone conference call hearing was a preliminary hearing to determine if the Application should be dismissed because the allegations in the Application seemed to relate to things that happened more than one year before the Application was filed.

3At the time the Application was filed in July 2014, the applicant was represented by a Community Legal Aid Clinic. In accordance with the Tribunal’s usual procedure, after the Application was filed, all correspondence was sent to the applicant's representative and not to the applicant. This included the Notice of Confirmation of Hearing, which was sent to the parties on January 28, 2015. The Notice confirmed that the preliminary telephone conference call hearing would take place on April 17, 2015. The Notice was sent to Mathew Ferguson, a Community Legal Worker at the Legal Clinic.

4On March 16, 2015, approximately one month before the hearing, Mr. Ferguson wrote to the Tribunal to advise that the Legal Clinic was no longer representing the applicant.

5The applicant did not appear at the scheduled preliminary hearing, and the Application was dismissed as abandoned, in keeping with the Tribunal’s usual practice when an applicant fails to appear at a hearing.

The Request for Reconsideration

6The applicant has requested that the Decision be reconsidered. He submits that his former representative did not specifically advise him of the hearing date. He says that he received the file from his former representative but did not notice the Notice of Hearing. He says that he had difficulty contacting anyone to clarify what he was to do. Mr. Ferguson has filed submissions in support of the applicant's request.

7The respondent opposes the Reconsideration Request, arguing that the applicant’s previous representative had an obligation to ensure that the applicant was aware of the hearing date and that a failure to do so is not a basis for reconsideration.

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.

[9] Rule 26 of the Tribunal’s Rules of Procedure 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.

Conclusions

10I find that the Request for Reconsideration should be granted for two reasons.

11First, it appears that the applicant did not receive notice of the hearing. The notice was sent to his representative and not to the applicant. I agree that the representative should have ensured that his former client was aware of the hearing date. I also agree that the applicant should have reviewed the documents he received from his former representative, but the fact remains that the applicant was not sent notice.

12The second reason is that the Application was dismissed as abandoned. It is clear that the applicant did not intend to abandon the Application.

13For these reasons, the Request for Reconsideration is granted. The Tribunal will schedule another preliminary hearing by telephone conference call to determine the delay issue identified in the Registrar’s letter of January 21, 2015.