Richard v. Toronto Transit Commission, 2016 HRTO 156

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ellaine Richard

Applicant

-and-

Toronto Transit Commission, Michael Sosedov and Dwyke Young

Respondents

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: February 2, 2016

Citation: 2016 HRTO 156

Indexed as: Richard v. Toronto Transit Commission

Introduction

1This case is scheduled for hearing on February 29, 2016.

2The applicant is alerted to the fact that she has failed to comply with Rules 16 and 17 of the HRTO’s Rules of Procedure regarding pre-hearing disclosure of witnesses.

3As the Tribunal notified the parties in the July 21, 2015 Notice of Hearing in this matter, under Rules 16 and 17 of the HRTO’s Rules of Procedure, the parties were obliged to provide the following things to one another and to the Tribunal by no later than January 15, 2016:

a. a list of the witnesses they intend to call at the hearing of the Application;

b. witness statements describing what the witnesses will say when they testify; and

c. copies of the documents they intend to rely upon at the hearing.

4It is now more than two weeks past the January 15, 2015 deadline and the applicant has not complied with her obligation regarding the exchange of witness statements and documents.

5There are serious consequences for this case if the applicant does not comply with her obligations under the Tribunal’s Rules, as set out below.

DIRECTIONS TO APPLICANT

6By no later than February 9, 2016, the applicant must deliver to the respondents and file with the Tribunal a list of her witnesses and a statement describing what her witnesses will say when they testify as well as any documents she intends to rely upon at the hearing.

7The applicant is reminded that she must also submit a witness statement for herself, assuming she intends to testify at the hearing. However, if the applicant only intends to testify about the facts already contained in the Application, it is sufficient for her to confirm this in writing by February 9, 2016.

8Failure to comply with these Directions may result in the Application being dismissed as abandoned..

9The HRTO’s Rules of Procedure are available at www.hrto.ca under “Law, Rules and Policies”.

10The parties may also benefit from reviewing the Tribunal’s “Guide to Preparing for a Hearing before the HRTO”, available at www.hrto.ca under “Guides and Forms”.

Request for Reconsideration

11In 2015 HRTO 1367, the Tribunal removed two individual respondents as parties to the Application. The applicant filed a Request for Reconsideration of the Decision. The applicant argues that due to solicitor’s inadvertence the applicant did not make submissions in response to the respondents’ Request that the individuals be removed.

12The Request is granted.

13Under 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.

14The 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 amended June 2008). 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.

15The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

16As 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.

17In her Request the applicant relied on Rule 26.5(b). The Request for Reconsideration is essentially a request that the decision to remove the two individual respondents be set aside and the applicant be afforded an opportunity to provide submissions in response to the respondents’ Request filed on September 22, 2015 (the second Request) because through no fault of her own she did not have a complete opportunity to do at the appropriate times. An earlier Request to the same effect had been filed by the respondents on October 7, 2014 (the first Request).

18The respondent argues that it would be inappropriate to allow the applicant to make further submissions as she already has had the opportunity to do so in response to the first Request.

19However, I accept the affidavit evidence of the applicant to the effect that her representative misplaced the respondent’s second Request and that her representative would have received instructions to provide responding submissions. I also accept her evidence that she has not seen a copy of the second Request, whether or not it was sent to her representative.

20I appreciate the respondents’ submission that the second Request was in a sense a formality required by the Tribunal’s deferral of their first Request pending mediation of this case and the failure of the Tribunal to address the issue after mediation did not resolve the issue. I note as well the second Request merely refers the Tribunal and the applicant to their submissions on this issue as contained in the first Request.

21Nonetheless it is clear that the applicant was not made aware of the second Request until after the Interim Decision was released. It is also noteworthy that the applicant indicated in her submissions responding to the first Request that she could not adequately address the issue until such time as the respondents had filed a Response. As indicated above the Tribunal ultimately deferred the issue until it was raised again by the respondent.

22For these reasons the Interim Decision is set aside. If the applicant wishes to make any further submissions in response to the Request(s) to remove the personal respondents she may so within 7 days of the date of this Reconsideration Decision.

Other Matters

23The respondents continue to be concerned that the applicant is seeking to expand the scope of the Application without seeking to amend the Application. I have addressed this issue in part by elaborating what I believe to be the only issue in the case – that being an alleged failure to accommodate the applicant’s alleged disability on one occasion in July 2014.

Orders and Directions

24The Tribunal makes the following Orders and Directions;

a. By no later than February 9, 2015, the applicant must deliver to the respondent and file with the Tribunal a list of her witnesses and a statement describing what her witnesses will say when they testify as well as any documents she intends to rely upon at the hearing.

b. Interim Decision 2015 HRTO 1367 is set aside to the extent that it removed two personal respondents. The applicant will deliver and file submissions in response to the respondents’ Requests to remove the personal respondents within 7 days of the date of this Reconsideration Decision.

25I am not seized of this matter.