HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Edward Peprah
Applicant
-and-
Royal Ottawa Health Care Group
Respondent
RECONSIDERATION DECISION
Adjudicator: Mark Hart
Date: January 29, 2016
Citation: 2016 HRTO 138
Indexed as: Peprah v. Royal Ottawa Health Care Group
[ 1 ] This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2015 HRTO 1106 dated August 19, 2015, which dismissed the Application as abandoned.
[ 2 ] On September 7, 2015, the applicant filed a Request for Reconsideration of the Tribunal’s Decision.
[ 3 ] Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) provides as follows:
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.
[ 4 ] Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The Tribunal has issued rules governing such requests as well as a Practice Direction on Reconsideration to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers.
[ 5 ] The Tribunal’s Practice Direction on Reconsideration includes the following:
Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.
[ 6 ] As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.
[ 7 ] In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an Application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.
[ 8 ] The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 of the Rules provides:
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.
[ 9 ] As a result, I need to determine whether the material filed by the applicant in support of his Request for Reconsideration satisfies the criteria set out in Rule 26.5 relied upon in the Request. The applicant relies upon the criteria identified in Rule 26.5(b).
[ 10 ] The applicant states that he never received notice about sending any witness information either by e-mail or mail. He states that he had problems with his e-mail. He also states that his father died on July 27, 2015.
[ 11 ] A Notice of Hearing in this matter was sent to the applicant by regular mail on March 17, 2015, giving notice that the hearing was scheduled to proceed in Ottawa on August 28, 2015 and advising the parties of their obligations under this Tribunal’s Rules of Procedure to file a list of witnesses, witness statements and documents for the hearing by July 14, 2015. This letter expressly states that “if an applicant does not disclose and file the required materials, the application may be dismissed”. The Notice of Hearing was sent to the applicant by regular mail at the address provided by him in the Application, which is the same address provided by the applicant in his Request for Reconsideration. The Notice of Hearing was not returned to the Tribunal as undeliverable. I am satisfied therefore that the applicant received proper notice of the hearing in this matter, and also received proper notice that his failure to file the required hearing materials may result in his Application being dismissed.
[ 12 ] When the applicant failed to file the required hearing materials with the Tribunal by July 14, 2015, I issued a Case Assessment Direction (“CAD”) dated July 22, 2015 reminding him of his obligations under the Rules and expressly advising him, once again, that if he failed to serve and file these materials by August 7, 2015, his Application may be dismissed as abandoned. I presume that it is this document that the applicant alleges he never received.
[ 13 ] The CAD was sent to the applicant both by regular mail and by e-mail. The CAD was sent by regular mail to the address provided by the applicant in the Application, which once again is the same address referenced in the Request for Reconsideration. The CAD was not returned to the Tribunal as undeliverable. The CAD also was sent to the applicant at the e-mail address provided by him in his Application, which is the same e-mail address from which he filed his Request for Reconsideration on September 7, 2015. The e-mail sent to the applicant with the CAD was not returned to the Tribunal as undeliverable. Whether or not the applicant had problems with his e-mail at or around this time, as he alleges in his Request for Reconsideration, he has provided no explanation for why he would not have received the mailed copy of the CAD.
[ 14 ] In this regard, I note that the Decision dismissing the Application as abandoned was sent to the applicant by regular mail and e-mail to the same addresses as the CAD was sent. Clearly, the applicant received the Decision in this matter, given that he has filed a Request for Reconsideration from the Decision. The applicant has provided no explanation for why he was able to receive the Decision, when he alleges that he did not receive the CAD which was sent to the same mailing address and the same e-mail address.
[ 15 ] In the Request for Reconsideration the applicant states that his father passed away on July 27, 2015, which is during the period that he was directed in the CAD to comply with his pre-hearing obligations and which may understandably preclude the applicant from complying with the CAD. However, the Request for Reconsideration does not explain or excuse the applicant’s failure to contact the Tribunal in any manner during this period, whether to comply with his pre-hearing obligations or to request an extension due to the untimely death of his father.
[ 16 ] Accordingly, I am satisfied that the applicant received notice of his pre-hearing obligations under the Rules and the potential consequences of failing to comply with these obligations, both by virtue of the Notice of Hearing dated March 17, 2015 and through the CAD dated July 22, 2015. Despite being afforded an extended time to comply with these obligations, the applicant failed to do so. As a result, I am not satisfied that the applicant, through no fault of his own, failed to receive notice of his pre-hearing obligations or of the potential for his Application to be dismissed for failure to comply with these obligations.
[ 17 ] For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.
Dated at Toronto, this 29th day of January, 2016.
“signed by”
Mark Hart
Vice-chair