Caldwell v. Canadian Tire Corporation Limited, 2016 HRTO 1227

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William (Bill) Caldwell

Applicant

-and-

Canadian Tire Corporation Limited and Bruce Dowsett

Respondents

RECONSIDERATION DECISION

Adjudicator: Bruce Best

Date: September 19, 2016

Citation: 2016 HRTO 1227

Indexed as: Caldwell v. Canadian Tire Corporation Limited

1This decision addresses a Request for Reconsideration of a decision dismissing the Application.

2A Case Assessment Direction (“CAD”) was issued on May 26, 2016 requiring the applicant to deliver to the respondents and file with the Tribunal the documents on which he intended to rely, and, if he was not intending to call any other witnesses and was intending only to testify himself with respect to allegations raised in his Application, that he was to confirm this with the Tribunal and the respondents by June 2, 2016. The CAD further indicated that if the applicant did not respond to the CAD or otherwise communicate with the Tribunal, the Application may be dismissed as abandoned.

3The Tribunal did not receive any communication from the applicant in response to the CAD, and as such the Application was dismissed as abandoned on June 7, 2016 by Decision 2016 HRTO 774.

4On June 8, 2016, the respondents advised the Tribunal that the applicant had in fact contacted them on June 3, 2016, providing his documents and indicating that he would be testifying on his own behalf solely on the basis of the materials already filed. This correspondence from the applicant was sent only to the respondents’ counsel, and was not sent to the Tribunal.

5Following receipt of the above correspondence from the respondents, the Tribunal attempted to schedule a case management conference call for June 17, 2016, but was unable to reach the applicant, and the file was closed pursuant to the Decision.

6On July 6, 2016, the applicant filed a number of documents with the Tribunal which appeared to be in response to the CAD and appeared to be in anticipation of a hearing. The Tribunal advised the applicant on July 8, 2016 that the Application had already been dismissed as abandoned, and further indicated that if he disagreed with this decision he was entitled to ask for a Reconsideration. The applicant was given until August 6, 2016 to do so.

7The applicant subsequently obtained legal advice and filed a Request for Reconsideration on August 5, 2016, in which he claimed that, though he had been initially advised he could represent himself, he had found the process overwhelming and confusing. He also advised that he had not received any correspondence respecting the June 17, 2016 conference call. He also noted that the Reconsideration request was not a challenge to a decision made after hearing evidence and making a determination on the merits, but was rather only asking for an opportunity to have his case heard.

Analysis and Finding

8Where a party has not complied with the Tribunal’s Rules of Procedure respecting pre-hearing disclosure and witness statements, the Tribunal will generally issue a case assessment direction requiring compliance with the Rules. The reason for so doing is both to ensure the efficient resolution of the application, and to ensure that the other party is given sufficient notice of the evidence the other party intends to present.

9In many cases, an applicant does not respond to a CAD at all, and their application will be dismissed on the assumption that they have decided to abandon their claim. This is not uncommon; even in the past month the Tribunal has dismissed a number of applications based on the applicant’s failure to comply with a CAD. See Patel v 1439597 Ontario Ltd. Petro Canada #00959, 2016 HRTO 1193, Zhou v. Parkway Hotels and Convention Centre Inc., 2016 HRTO 1172, Francis v. Gap (Canada) Inc., 2016 HRTO 1145, and Johnny v. Ivanhoe Cambridge II, 2016 HRTO 1092.

10In the present case, however, it is clear that the applicant did not intend to abandon his claim. He did, in fact, respond to the CAD, before the Application was dismissed. The applicant notified the respondents that his testimony would be limited to the materials already filed, and had provided the respondent with the documents on which he intended to rely. The Application was dismissed only because the applicant had not copied this email to the Tribunal. Though it is important for the efficient resolution of an application that the parties comply with the filing requirement under the Rules, I accept that the applicant had substantially complied with the CAD prior to the Application being dismissed.

11Rule 26.5 of the Tribunal’s Rules of Procedure provides as follows:

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 has generally recognized the public importance of finality of decisions, and the power of reconsideration should be exercised with care. See Taranco v. Michedes, 2009 HRTO 1439 (“Taranco”), at para. 16. In Taranco, the Tribunal had dismissed the application without a hearing on the merits because of a technical failure to comply with a direction from the Tribunal. The Tribunal held that in such circumstances the public interest in respecting the finality of decisions was less compelling than it would have been in a “situation where a hearing was held, evidence called, submissions made and a decision rendered.” The Tribunal recognized that it would be unfair in the circumstances not to grant the reconsideration. Similarly, in Pennington v. Peterborough (City), 2013 HRTO 127, the Tribunal granted a reconsideration on the basis of procedural fairness where a party’s submissions had not been received through no fault of his own.

13The respondents have pointed out that the applicant’s dates are inconsistent, and that his explanation as to why he did not respond to the attempts to schedule a conference call is unclear. It is, however, clear to me from the applicant’s actions that he did in fact intended to participate in the proceedings, and in my view it would be unfair not to permit the matter to proceed to a hearing on the merits. Given the fact that the hearing was scheduled to go ahead in June 2016, and the respondents were clearly prepared to proceed at that time, I further do not see how any prejudice to the respondent would result from granting the Request.

14For the above reasons, I find that it would be unfair to the Applicant to uphold my decision of June 8, 2016, and as such Request for Reconsideration is granted. The Application will proceed to a hearing on the merits.

15I do also want to recognize that the respondents and their counsel were forthright in promptly advising the Tribunal after the June 7, 2016 decision that they had in fact received correspondence from the applicant in response to the CAD. Doing so is commendable in that it shows their respect for the administration of justice, as well as respect for the Law Society of Upper Canada’s Rules of Professional Conduct expected of representatives before the Tribunal.

ORDER AND DIRECTION

16The Request for Reconsideration is granted.

17The Registrar shall schedule a one-day hearing on the merits of the application.