Murray v. Youth Link, 2015 HRTO 943

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nadine Murray

Applicant

-and-

Youth Link

Respondent

-and-

Amalgamated Transit Union, Local 113

Intervenor

RECONSIDERATION DECISION

Adjudicator: Jo-Anne Pickel

Date: July 16, 2015

Citation: 2015 HRTO 943

Indexed as: Murray v. Youth Link

WRITTEN SUBMISSIONS

Nadine Murray, Applicant

Al Baksh, Representative

Youth Link, Respondent

Kathryn Bird, Counsel

Introduction

1The applicant requested Reconsideration of the Tribunal’s Decision, 2015 HRTO 756, dismissing her Application as abandoned when she and her counsel failed to take part in a summary hearing scheduled by the Tribunal.

2The circumstances in which reconsideration may be granted are set out in Rule 26.5 of the Tribunal’s Rules of Procedure (“Rules”):

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.

Factual Background

3On March 2, 2015, the Tribunal issued a Notice of Summary Hearing (“Notice”) to the parties confirming that a summary hearing would take place by teleconference on June 8, 2015 at 9:30 a.m. In an earlier Case Assessment Direction, the Tribunal directed that a summary hearing be held to determine whether all or part of the Application should be dismissed on the basis that it stands no reasonable prospect of success.

4The Notice could not be clearer in stating – in a boxed area at the very top of the Notice and in bold – that the parties were responsible for calling into the teleconference for the summary hearing. The notice sets out the telephone numbers that the parties were required to call and the conference identification number to enter for the hearing.

5When the applicant had not joined the teleconference hearing by 10 a.m. on June 8, 2015, I followed the Tribunal’s usual practice of seeking submissions from the other parties. Based on these submissions, I orally dismissed the Application as abandoned. This decision was confirmed in a written decision issued the next day.

6The applicant filed a Request for Reconsideration (“Request”) on July 8, 2015. She claimed that she did not receive notice of the summary hearing. However, it is clear from her Request that the reason that neither she nor her counsel called into the teleconference was because they were under the mistaken impression that the Tribunal would call them for the summary hearing.

7The respondent opposed the applicant’s Request. It submitted that there was no basis for the applicant’s assertion that she was unaware of the procedures to call into the summary hearing. The respondent also noted that it is a registered charity providing services to at risk youth and that the cost of preparing for the summary hearing were significant. It submitted that it should not be required to prepare a second time because the applicant failed to participate in the hearing.

Analysis

8The only conditions listed in Rule 26.5 that could possibly apply in this case are the following:

(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

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

9I find that the circumstances of this case do not support granting reconsideration under the condition set out in Rule 26.5(b). There is no doubt that the applicant received notice of the teleconference hearing and it was her and her counsel’s own mistake, not lack of notice, that caused her and her counsel to miss the hearing.

10The Tribunal has held that in some cases, a mistake similar to the one in this case may support reconsideration under Rule 26.5 (d). See Williams v. Toronto Transit Commission, 2013 HRTO 1196 and Ade-Ajayi v. Peel Access to Housing and Region of Peel, 2012 HRTO 613. In my view, the misreading of a Notice of Summary Hearing will only in very rare circumstances support reconsideration under Rule 26.5 (d). The Tribunal has reiterated many times that, by filing an Application with the Tribunal, parties are commencing legal proceedings. By doing so, parties have an obligation to exercise due diligence in reading Tribunal correspondence.

11One would expect that the applicant, and especially her counsel, would have understood the importance of reading the Tribunal’s Notice carefully. I also accept that the respondents incurred some time and cost by attending the initial hearing which in the end did not take place due to the applicant’s oversight. However, in my view, any prejudice to the respondent relating to the required preparation for a reconvened hearing is relatively minimal given that the respondent’s counsel already has prepared for the initial hearing.

12I find that, on balance, it is appropriate to grant reconsideration as it is clear that the applicant has not abandoned her Application.

Style of Cause

13I note that Decision 2015 HRTO 756 incorrectly listed Janice Hayes, Kelsey Beson and Tara Guitard as respondents in the style of cause. These three individuals were named as representatives of the organizational respondent in the Application and not as respondents. The Tribunal has corrected the style of cause in its records and on this Reconsideration Decision.

ORDER

14The Tribunal orders as follows:

a. The applicant’s Request for Reconsideration is granted.

b. The Registrar shall schedule a half day hearing by teleconference to hear oral submissions on the issue identified in the Tribunal’s January 20, 2015 Case Assessment Direction. The parties will be sent a new Notice of Summary Hearing with new call in telephone numbers and conference identification numbers.

c. The applicant and her counsel should carefully review the Notice, the Tribunal’s Case Assessment Direction, and all correspondence from the Tribunal as these materials contain important information regarding the legal proceeding begun by the applicant.