Diane Preikschas-Brown v. Scully’s Crab Shack and Shawn Wheeler, 2016 HRTO 1370

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Diane Preikschas-Brown Applicant

-and-

Scully’s Crab Shack and Shawn Wheeler Respondents

RECONSIDERATION DECISION

Adjudicator: Alison Renton Date: October 24, 2016 Citation: 2016 HRTO 1370 Indexed as: Preikschas-Brown v. Scully’s Crab Shack

WRITTEN SUBMISSIONS

Diane Preikschas-Brown, Applicant Beth Walden, Counsel

1This is an Application for Contravention of Settlement, Form 18 (“the Application”), alleging a breach of settlement under section 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). In Decision 2014 HRTO 1789 (“the Decision”), the Tribunal determined that the Application could not proceed and closed the file.

2The applicant is represented by a legal representative. She filed a Request for Reconsideration (“the Request”), which she delivered to the respondents’ former legal counsel and then to the personal respondent at the address of the organizational respondent. The Tribunal sent the Request to the respondents, and requested that a Response to the Request be filed, but the respondents have not filed a Response to the Request and the time for doing so has elapsed.

3For the reasons set out below, the Request is denied.

background

4Section 45.9(3) of the Code permits a party who believes that another party has contravened a settlement to file an application alleging a breach of settlement within six months after the contravention or, if there is a series of contraventions, within six months after the last contravention. Section 45.9(4) permits a breach of settlement application to be filed after the six-month period if there is a good faith explanation for the delay.

5Rules 24.1 and 24.2 of the Tribunal’s Rules of Procedure (“the Rules”) and Form 18 itself require that the party who files an application for contravention of settlement must file a copy of the settlement with the Tribunal and deliver a copy of the Form 18 to each party to the settlement. The party must also file a Form 23, Statement of Delivery (“Form 23”), with the Tribunal, which contains information about to whom the Form 18 was delivered, as well as when and how it was delivered. This process is different from applications filed under section 34 of the Code (“section 34 applications”). With section 34 applications, the Tribunal, not the applicant, delivers the application to the respondent for response.

6The applicant filed her Application with the Tribunal in May 2014. She was informed by the Tribunal that her Application was incomplete as she failed to file a copy of the settlement with the Tribunal and failed to deliver a copy of the Application to the respondents. The Tribunal communicated several times with her legal representative about this. Subsequently, the applicant filed a copy of the settlement with the Tribunal and filed a Form 23 indicating that the Application had been sent to the respondents’ former legal representative.

7The respondents’ former legal representative emailed the Tribunal and the applicant’s legal representative advising that he had retired from the practice of law and did not accept service of the Application.

8The Tribunal then wrote to the applicant’s legal representative requesting information about whether the Application had been sent to the respondents and who signed for the materials. The applicant’s legal representative responded that no one had signed for the materials, that its couriered materials had been returned, but that the materials sent by regular mail had not. Upon review, the Tribunal observed that the materials had been sent to the respondents’ former legal representative’s address.

9The Tribunal then sent another letter to the applicant’s legal representative asking if the Application had been sent to an address other than the respondents’ former legal representative’s address. The Tribunal advised that it could not deem the Application to be served on the respondents based upon the information that it had, identified a date by which the legal representative was required to respond, and warned that a failure to respond to the correspondence may be an abandonment of the Application and that the file may be closed. The applicant’s legal representative did not respond to this letter.

10The Tribunal then issued the Decision.

11After the Decision was issued, the applicant’s legal representative wrote to the Tribunal explaining why she had not responded to its correspondence, advised that the organizational respondent was no longer in business, and that she had a valid address for the personal respondent at which the legal representative would serve him if the Tribunal re-opened the file.

12The Tribunal advised that it was not in a position to re-open a file where a final decision had been issued. It informed the legal representative about the option of filing a Request. The Request was subsequently filed.

the request

13In the Request, the applicant relies upon Rule 26.5(d) of the Tribunal’s Rules and submits that there are other factors that outweigh the public interest in the finality of Tribunal decisions. She submits that her Application is about the respondents breaching the terms of a settlement by failing to pay the financial amount within six months from the date of the settlement and by the personal respondent failing to compete the training to which he agreed.

14The applicant submits that there was an administrative oversight at her legal representative’s offices such that there was no response to the Tribunal’s last correspondence to it and that the Tribunal administratively closed the file. At the time the Tribunal’s correspondence was received at her legal representative’s office, the pairing of legal assistants assigned to lawyer was in a state of flux as one assistant was returning from parental leave. In addition, email correspondence that is sent to counsel, is sent directly to her assistant and not to her.

15Furthermore, the applicant confirmed that the Application had not been served on any other address other than that of the respondent’s former legal counsel, the organizational respondent has gone out of business, and that she has obtained another address for service for the personal respondent.

16The applicant submits that if her Request is granted, the personal respondent will now be served forthwith and the Application can proceed. The personal respondent will not be prejudiced as he would be entitled to present evidence and submissions in response to the Application.

analysis

17Reconsideration is not an appeal. Rule 26.5 of the Tribunal’s Rules sets out the limited circumstances in which reconsideration may be granted:

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.

18In considering Rule 26.5(d), upon which the Request is based, and the circumstances of this Application, it is worth noting subsections 45.9(3) and (4) of the Code as well as Rule 24.1 of the Tribunal’s Rules. They state:

45.9(3) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8),

(a) within six months after the contravention to which the application relates; or

(b) if there was a series of contraventions, within six months after the last contravention in the series.

(4) A person may apply under subsection (3) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

24.1 An application under s. 45.9(3) of the Code alleging contravention of a settlement must be filed in Form 18, Application for Contravention of Settlement, delivered to the other parties to the settlement and filed with the Tribunal.

19The combination of section 45.9(3) and Rule 24.1 require a party alleging breach of settlement to file a Form 18 breach of settlement application within six months of the date of the breach, provide a copy of the minutes of settlement, and deliver a copy of the application to the other parties to the settlement. For the purposes of this Application, according to the minutes of settlement, the respondents had until January 3, 2014, to make the payment to the applicant, and the applicant had six months from January 3, 2014, pursuant to section 45.9(3) of the Code, to file her Application and deliver it to the respondents.

20The Tribunal has granted a reconsideration request where it has found that a legal representative’s actions have negatively affected a party from participating in the Tribunal’s proceedings. See, for example, Trevor v. Homestead Land Holdings Limited, 2013 HRTO 827, and Murray v. Youth Link, 2015 HRTO 943.

21However, despite the administrative oversight that occurred with the applicant’s legal representative and her office, and accepting the explanations provided by the legal representative, the respondents still have not been served with the Application, which, prior to the Decision being issued, was well beyond the six months required by section 45.9(3). The respondents’ former legal representative was very clear in his communications that he had retired from the practice of law earlier in 2014, before he received the Application, and that he did not accept service of the Application. In any event, Form 18 requires that there be service on the party, not its legal representative. The applicant did not send the Application to a secondary address, including, surprisingly, the address for the respondents which was identified on the Application.

22The applicant advises that the organizational respondent is out of business, but that she now has an address for the personal respondent to which she can deliver the Application. However, upon review of the Application, this new address for the personal respondent is the same address as was identified on the Application for both respondents. Therefore, if the Request was granted, the applicant would be sending the Application to the address she has had since the Application was sent to the Tribunal in May 2014. There is no explanation about why the Application had not been sent previously to the respondents at this address.

23In light of the above, I do not find that there are other factors which exist that outweigh the public interest in the finality of Tribunal decisions such that the Request ought to be granted. Accordingly, the Request is denied.