Johnston v. Ontario (Community Safety and Correctional Services), 2015 HRTO 818

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffrey Johnston

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services

Respondent

RECONSIDERATION DECISION

Adjudicator: Eli Fellman Date: June 18, 2015 Citation: 2015 HRTO 818 Indexed as: Johnston v. Ontario (Community Safety and Correctional Services)

1The Tribunal consolidated these two Applications on March 6, 2015.

2In its Response to Application 2014-19431-I, the respondent requested that the proceeding be dismissed on the basis that the applicant signed a full and final release with respect to the same matter.

3The Registrar wrote to the applicant on March 17, 2015 advising him that he must respond to the request to dismiss the Application by filing a Response to Request for Order During Proceedings (Form 11) by March 31, 2015. The letter advises the applicant that if he does not respond by the deadline, the Tribunal may consider this failure to respond as abandonment of the Application and dismiss the Application for that reason.

4On April 6, 2015, the applicant asked for an extension of time for filing the Form 11. The Tribunal sent the parties an email on April 16, 2015 extending the filing deadline until April 27, 2015. It appears that this email was sent by the Tribunal to the applicant using an incorrect email address.

5The Tribunal did not receive a Form 11 or other written submission from the applicant responding to the request to dismiss by the April 27, 2015 deadline. The applicant was deemed to have abandoned Application 2014-19431-I and that Application was dismissed in Interim Decision 2015 HRTO 656 issued on May 19, 2015 (“Interim Decision”).

6On May 22, 2015, the applicant submitted a Request for Reconsideration of the Interim Order. The Tribunal received and considered written submissions from both parties. In his submissions the applicant asserts that he did not receive the April 16, 2015 email from the Tribunal advising him of the extended deadline to file the Form 11, and he had no intention of abandoning the Application but simply needed more time to prepare his submissions.

THE RECONSIDERATION TEST

7Under 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.

8The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance 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 of Practice 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.

9The 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.

DECISION

10As noted, it appears that the Tribunal made an administrative error and did not send the April 16, 2015 email responding to the applicant’s request for an extension of time to file Form 11 to the correct address. It is more likely than not that the Applicant did not receive this email and was not aware that the Tribunal had imposed a deadline of April 27, 2015 for the submission of the Form 11.

11Therefore, the Reconsideration Request should be granted pursuant to Tribunal Rule of Practice 26.5(b) because I am satisfied that the applicant was entitled to but, through no fault of his own, did not receive a notice relating to the proceeding.

12The Tribunal has subsequently received the applicant’s Form 11 together with numerous supporting documents. The Tribunal will duly consider the respondent’s request to dismiss the Application on the basis that the applicant signed a full and final release with respect to the same matter, and the applicant’s response. The Tribunal may issue further directions with respect to this matter.

13I am not seized.