Pratt v. TAG Management, 2015 HRTO 824

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Pratt Applicant

-and-

TAG Management Respondent

RECONSIDERATION DECISION

Adjudicator: Eli Fellman Date: June 19, 2015 Citation: 2015 HRTO 824 Indexed as: Pratt v. TAG Management

WRITTEN SUBMISSIONS

Elizabeth Pratt, Applicant Self-represented

TAG Management, Respondent Richard Madden, Representative

INTRODUCTION

1This is a request to reconsider the Tribunal’s Decision dated March 31, 2015, 2013 HRTO 432 (“Decision”), finding the applicant had abandoned her Application to the Tribunal for the following reasons at paras 2-8:

By way of an Interim Decision dated January 7, 2014, 2014 HRTO 25, the Tribunal determined that the Application should be deferred pending the completion of a proceeding under the Employment Standards Act (ESA).

On October 8, 2014 the Registrar wrote to the applicant seeking information about the status of the ESA claim. The applicant was instructed to respond within 30 days and advised that, if she failed to do so, the Tribunal may dismiss the Application as abandoned.

On November 26, 2014 the applicant emailed the Tribunal and advised that the ESA claim had been completed. She also asked that the Tribunal proceed with her Application.

The Tribunal responded by email on November 27, 2014 instructing the applicant to deliver and file a Request to reactivate her Application, using Form 10, attach a copy of the ESA decision to the Request and provide a completed Statement of Delivery of the Request on the respondent.

On February 20, 2015, the Registrar wrote to the applicant noting she had not complied with the November 27, 2014 email. The applicant was advised that her Application may be dismissed as abandoned if the required documents were not submitted by March 6, 2015. The applicant asked for additional time to respond and the deadline was extended to March 20, 2015.

It is now 10 days past the March 20, 2015 deadline and the Tribunal has not received the required documents. Further, the Tribunal has not received any communication from the applicant since her request to extend the deadline.

In the circumstances, the applicant is deemed to have abandoned the Application.

2On April 1, 2015, the Applicant filed a Form 10 requesting that the Application be re-activated and included a copy of the June 9, 2014 ESA decision and the accompanying reasons.

3On April 21, 2015, the applicant filed this Request for Reconsideration. In her Request for Reconsideration, the applicant states that she was unable to comply with the deadline set by the Tribunal for submission of the ESA decision due to:

(. . .) serious illness and injuries in the first months of this year – for which I am undergoing significant medical treatment and assessment.

4The applicant did not provide any further details or supporting documents in the Request for Reconsideration.

5On May 4, 2015, the Tribunal issued a Case Assessment Direction (“CAD”). The CAD directed the applicant to provide documents to support the assertion that her medical condition prevented her from complying with the Tribunal’s direction. The applicant was advised that these documents must be received by the Tribunal within 10 days of the date of the CAD.

6On May 14, 2015, the applicant submitted a letter from a doctor as per the CAD. The letter states as follows:

(. . .) Patient has had several health problems from fecuary [sic] and ongoing, starting with concussion, post MVA and frequent kidney infections. She has not been able to keep her deadlines and has needed time off work. Please accommodate her with extending her deadline due to medical concerns. If you need further information, please contact my office.

7By way of a Tribunal Registrar’s Letter dated May 21, 2015, the respondent was directed to provide written submissions respecting the applicant’s Request for Reconsideration by June 4, 2015.

8On June 4, 2015, the respondent submitted a Response to a Request for Reconsideration (Form 21). The respondent makes the following observations about the Request for Reconsideration: the applicant’s home address is Hamilton but the walk-in clinic where she obtained the letter is located in Oakville; the letter is dated nearly two months after the extended deadline was missed by the applicant; no proof of a motor vehicle accident was provided; no supporting documents such as tests or prescriptions dating back to February or March 2015 were submitted; and, there was no mention of any medical problems in her Application or the request to extend time to file the Request for Reconsideration.

9The respondent also suggest that the content of the Application was addressed in the ESA decision and the allegations are untrue and/or do not constitute breaches of the Code.

THE RECONSIDERATION TEST

10Under 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.

11The 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.

12The 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

13The applicant has the burden of establishing the criteria justifying Reconsideration. More specifically, she must establish that there are compelling and extraordinary circumstances that outweigh the public interest in finality of Tribunal decisions.

14While it would have been preferable if the applicant had requested an extension of the deadlines set by the Tribunal prior to their expiry if required for accommodation purposes, the medical evidence submitted by the applicant now indicates that she had ongoing health issues that affected her ability to meet the Tribunal’s deadline. I have taken note of the respondent’s objections to the medical evidence and agree that it could be more detailed. However, the evidence is sufficiently detailed and credible to establish that it is more likely than not that the applicant’s documented medical issues affected her ability to submit a copy of the June 9, 2014 ESA decision by the stipulated deadline. Moreover, the applicant has demonstrated that notwithstanding her failure to submit the ESA decision on time, she has not abandoned this Application.

15I also note that the deadline for the submission of the ESA decision was not a statutory deadline, but rather a deadline imposed by the Tribunal itself in order to ensure that the Tribunal adjudication process continues without undue delay. As this deadline was set within a broad exercise of the Tribunal’s discretion, the Tribunal must also possess broad discretionary authority to consider the reasons why the deadline was not met and grant a party with additional time where there are compelling circumstances. I find that the medical evidence suggests that there are sufficiently compelling circumstances to justify the applicant’s request for additional time to provide the required materials.

16I also find that the respondent will not experience any substantial prejudice as a result of granting the applicant’s Reconsideration. The Application was deferred at the respondent’s request, meaning the respondent is expected to be in a position to participate in the Tribunal’s process upon the completion of the ESA proceeding.

17For these reasons, I find that other factors exist that outweigh the public interest in the finality of the Tribunal decision dismissing the Application.

18As noted above, Interim Decision 2014 HRTO 25 deferred the Application pending the completion of the ESA proceeding. The parties agree that the ESA proceeding has been completed, and there are no outstanding ESA appeals. Therefore, the Tribunal’s Application can now be re-activated and proceed in the normal fashion.

DECISION

19The Request for Reconsideration is granted, the dismissal is set aside and the Application is reactivated.

20The respondent was not previously required to file a Response (Form 2) because the Application was deferred. The Respondent is now required to file a Response within 35 days of the date of this Decision.

21In addition, I note that it is unclear from the submissions or medical evidence submitted whether the Applicant has ongoing medical restrictions or is seeking accommodation going forward. If this is the case, the Applicant must contact the Tribunal at the earliest opportunity to seek appropriate accommodation. Additional information on the process and expectations are available on the Tribunal’s website at: www.sjto.gov.on.ca/hrto/accessibility-and-accommodations/.