Marinac v. Kingston and District Board of Approved Basketball Officials, 2016 HRTO 1504

Human Rights Tribunal of Ontario

B E T W E E N:

William Joseph Marinac

Applicant

-and-

Kingston and District Board of Approved Basketball Officials (“KDBABO”)

Respondent

RECONSIDERATION DECISION

Adjudicator: Maureen Doyle

Date: December 8, 2016

Citation: 2016 HRTO 1504

Indexed as: Marinac v. Kingston and District Board of Approved Basketball Officials

WRITTEN SUBMISSIONS

William Joseph Marinac, Applicant

Self-represented

Kingston and District Board of Approved Basketball Officials (“KDBABO”), Respondent

No submissions Choose an item.

Introduction

1On August 14, 2015, the Tribunal issued its Decision in this Application, Marinac v. Kingston District Board of Approved Basketball Officials 2015 HRTO 1087, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

BACKGROUND

2The Tribunal’s Decision found as follows:

• By notice of Summary Hearing dated June 5, 2015, the applicant had notice of the hearing, scheduled to commence on August 14, 2015, at 9:30 am;
• By 10 am, the applicant was not in attendance at the hearing, nor had the applicant communicated with the Tribunal to explain his failure to attend, and the Application was dismissed on the basis that the applicant was deemed to have abandoned the Application.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. The applicant was entitled to notice, but through no fault of his own, did not receive notice of the proceeding or a hearing.

THE LAW

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

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.

5The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008, last amended April 2014). Most relevant to this Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

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.

6The Tribunal’s Practice Direction on Reconsideration includes the following statements:

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.

7As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen 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.

ANALYSIS AND CONCLUSIONS

8I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

9As indicated above, the applicant relies on Rule 26.5(b). He submits that he received an email on June 16, 2015, “that set out a Notice of a Summary Hearing for Friday, August 14^th 2015 at between 9:30 and 12:30 pm”, but that “the Attachment setting out my requirement to phone in at 9:30 am on that date did not open. Accordingly, I mistakenly assumed that someone from HRTO would call at 9:30 and a Conference Call be set up at that time”. He states that he waited until 10 am, then phoned “Board”, who told him that the call-in instructions were in the attachment. He states that he went to a library where he opened the attachment on a “regular computer”. He submits that he was “not aware” and had “no opportunity to be heard” and that his case should be decided “on Merits not technicalities”.

10I am not satisfied that the applicant was entitled to but did not receive, through no fault of his own, notice of the hearing.

11On March 11, 2015, the applicant wrote to the Tribunal, requesting an extension to file his Reply and indicating that he had moved and providing a mailing address for “all further correspondence”.

12On June 5, 2015, the Tribunal mailed the Notice of Summary Hearing to the applicant at the address he provided. The Notice contains the call-in information necessary to participate in the Summary Hearing by telephone and advises that if he fails to attend the hearing after receiving proper notice, the Tribunal “may proceed in your absence (if you are a respondent or intervener) or dismiss the Application as abandoned (if you are the applicant).” The Notice was not returned as undeliverable.

13Further, while the applicant indicates that he was “provided an email correspondence” setting out the Notice of Summary Hearing and attachment which he could not open on June 16, 2015, he does not indicate what, if any efforts he made to access the attachment or inquire into its contents before August 14, 2015. He submits that he “assumed” that “someone” from the Tribunal would contact him on August 14, 2015.

14I note at this point that the applicant is not an unsophisticated applicant. In his Application, he indicates that he was a lawyer. Especially in these circumstances, it can be expected that if the applicant received an email on June 16, 2015 indicating a hearing was scheduled for August 14, 2015, and was unable to open the attachment for details, it would be incumbent upon him to make appropriate efforts and inquiries before August 14, 2016 regarding the nature of the details contained in the attachment. Even if I were to accept the circumstances described by the applicant in his Request for Reconsideration, it would not persuade me that he did not receive, through no fault of his own, notice of the hearing.

15In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.