HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tonka Misetich
Applicant
-and-
Value Village Stores Inc. and Savers Inc.
Respondents
-and-
Ontario Human Rights Commission
Intervenor
RECONSIDERATION DECISION
Adjudicator: Jennifer Scott
Indexed as: Misetich v. Value Village Stores Inc.
WRITTEN SUBMISSIONS
Tonka Misetich, Applicant
Self-represented
Value Village Stores Inc. and Savers Inc., Respondents
Kathryn Bird, Counsel
introduction
1The hearing in this matter commenced on December 17 and 18, 2014, and hearing continuation dates were set for June 10 and 15, 2015. The June 10, 2015 date was an in-person hearing. The June 15, 2015 date was scheduled as a teleconference hearing to allow a witness to testify from Washington.
2By decision 2015 HRTO 778 (the “Decision”), released on June 11, 2015, I dismissed this Application as abandoned because the applicant failed to attend the in-person hearing on June 10, 2015.
3The applicant filed a Request for Reconsideration of the Decision on June 11, 2015 and supplemented her submissions on June 15, 2015. The respondents oppose the Request for Reconsideration.
4The Ontario Human Rights Commission (the “Commission”) is an intervenor in this case. It requested intervenor status to provide final submissions on the legal test for discrimination in cases involving family status obligations. The Commission has not attended any of the hearing dates.
5The Commission filed submissions in support of the applicant’s Request for Reconsideration. I have not considered those submissions because they are outside of the Commission’s role in this case.
6In her Request for Reconsideration, the applicant states she did not receive fair notice of the June 10, 2015 hearing date because the focus of the email correspondence from the Tribunal was on the June 15, 2015 teleconference. The applicant states she believed the next scheduled hearing date, after the December hearing dates, was June 15, 2015. When she was advised the June 15, 2015 hearing date was cancelled, she immediately contacted the Tribunal and inquired about rescheduling the witness who was scheduled to testify that day. The applicant states she was not aware of the June 10, 2015 in-person hearing date and had no intention of abandoning her Application. She states further that, to date, she has complied with all of her procedural obligations and has attended all of the hearing dates that have taken place.
7The respondents submit all parties were notified of the June 10, 2015 in-person hearing and the June 15, 2015 teleconference hearing by Notice of Hearing dated February 10, 2015. They submit the applicant must have received the Notice of Hearing because she was aware of the June 15, 2015 teleconference. The respondents state the only change made to scheduling after the Notice of Hearing was sent out was the time of the teleconference. The respondents advise that they went to considerable expense to prepare and attend the in-person hearing on June 10, 2105. This included arranging for the Director of Team Member Relations to attend from British Columbia and the re-assignment of the duties of the witness scheduled to testify on June 10, 2015.
decision
8The Request for Reconsideration is allowed for procedural fairness reasons.
analysis
9The parties were advised of the June 10 and 15, 2015 hearing dates by Notice of Hearing dated February 10, 2015. In a text box on the Notice of Hearing, the information relating to the in-person hearing on June 10, 2015 was set out and included the date of the hearing, the location of the hearing and the start time. The information relating to the June 15, 2015 teleconference was below the June 10, 2015 information and included the date of the teleconference, the number to connect to the call, and the conference ID number.
10On February 12, 2015, the Tribunal contacted the parties about the time for the teleconference on June 15, 2015 because it had come to the Tribunal’s attention that the Notice of Hearing did not indicate a start time for the conference call. The Tribunal advised the parties that the conference call would commence at 9:30 a.m.
11On February 13, 2015, the Tribunal sent another email to advise the parties that the conference call on June 15, 2015 would commence at 1:30 p.m. instead of 9:30 a.m. The time change was at the request of the respondents.
12There was no mention in the follow-up email correspondence from the Tribunal about the June 10, 2015 in-person hearing, although the Notice of Hearing was attached to the February 12, 2015 email.
13The hearing in this matter was unusual in terms of having an in-person hearing and a teleconference hearing on two separate days. Normally, a teleconference is part of an in-person hearing, except the witness testifies by phone.
14The applicant states she was unaware of the June 10, 2015 hearing and had no intention of abandoning her Application. The applicant’s actions support this claim. When the applicant found out that the June 15, 2015 teleconference was cancelled, she immediately contacted the Tribunal and indicated her expectation that the matter would be rescheduled. When the applicant learned her Application had been dismissed as abandoned, she immediately filed her Request for Reconsideration asking the Tribunal to review that finding. The applicant’s submissions raise the question as to whether she received notice of the June 10, 2015 hearing.
15The Divisional Court recently addressed the issue of notice in Harvey v. Evan’s Bus Lines (Div. Ct. DV-14-2080) on June 9, 2015, when it quashed the Tribunal’s decision dismissing an application as abandoned because the applicant did not attend a hearing. The Court held the duty of fairness requires an applicant be given notice of a hearing. In that case, the Court determined the applicant had not received notice.
16In the unusual circumstances of this case, I find that there is a question as to whether the applicant received effective notice of the June 10, 2015 in-person hearing because of the confusion regarding the two hearings in the Notice of Hearing. I would note that the earlier Notice of Hearing issued by the Tribunal regarding the December 2014 hearing dates contained information about one hearing, even though the hearing took place on two hearing days. If this Notice of Hearing was confusing, the confusion was exacerbated by the Tribunal’s subsequent communications about the June 15, 2015 teleconference without any reference to the June 10, 2015 in-person hearing. The question about the lack of notice must be resolved in the applicant’s favour. I therefore find the applicant did not receive effective notice of the June 10, 2015 in-person hearing. As such, the duty of fairness requires that my decision dismissing the Application as abandoned be reconsidered. For this reason, the Request for Reconsideration is allowed.
17I am very mindful of the inconvenience and expense the respondents have incurred because of the Tribunal’s failure to provide effective notice. I would like to re-schedule the hearing in a way that creates the least inconvenience to them. It appears that we will need one day to finish the evidence of Mr. Serra and hear the evidence (via teleconference) of Ms. Blankinship. Both of these witnesses can testify on one hearing day. Mr. Serra in person and Ms. Blankinship by teleconference.
18A case management conference call will be scheduled with the parties to canvass options for scheduling a continuation date. Such options include: (a) completing all of the evidence by teleconference; (b) completing the hearing in Toronto, where the Director of Team Relations could participate by videoconference; or (c) arranging a continuation date in St. Catharines when the Director of Team Relations is next in Ontario. The parties may have additional ideas in terms of scheduling.
order
19The applicant’s Request for Reconsideration is allowed.
20A case management conference call will take place to determine how the hearing should be scheduled.
Dated at Toronto, this 26th day of June, 2015.
“Signed by”
Jennifer Scott
Vice-chair