Felix v. Cara Operations Limited, 2016 HRTO 1609

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hans Felix

Applicant

-and-

Cara Operations Limited, Gokul Raj, Jason Samuel, Springer Bentley and Vince Flores

Respondents

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw

Date: December 14, 2016

Citation: 2016 HRTO 1609

Indexed as: Felix v. Cara Operations Limited

WRITTEN SUBMISSIONS

Hans Felix, Applicant

Self-represented

Introduction

1On October 16, 2015, the Tribunal issued its Decision in this Application, 2015 HRTO 1381, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

BACKGROUND

2The Tribunal’s Decision dismissed the Application pursuant to section 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration (“Form 20”) provides the following reasons why the Tribunal should reconsider its Decision:

a. There are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier;

b. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; and

c. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.

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

Late Reconsideration Request

8The applicant’s request was not made within 30 days of the October 16, 2015 Decision. The applicant states that he did not receive notice of the Decision even though his address was on file with the Tribunal.

9On October 15, 2015, the day before the Decision was released and mailed to the parties the applicant e-mailed the Tribunal and enclosed what he called new information.

10On October 16, 2015, the Decision was mailed to the applicant at 205-135 Fenelon Drive, North York, ON, M3A 3K7. The applicant had stated in his Application that mail was his preferred method of receiving communication from the Tribunal.

11On January 25, 2016 the applicant e-mailed the Tribunal to disagree with the Tribunal’s Decision. He stated he did not receive a copy of the Decision by mail, although he attached a copy of it to his e-mail. He stated that he was attaching a copy of his re-directed mail to show the Tribunal that the Decision was re-directed to his new address, but a copy was not attached so it is unclear when the applicant received the Decision, though he obviously had it by no later than January 25, 2016.

12This same day, the Tribunal advised the applicant that if he intended on making a request for reconsideration he had to file a Form 20 Request for Reconsideration.

13It appears the applicant again e-mailed the Tribunal on January 26, 2016. The Tribunal responded the same day and stated:

The Tribunal is returning this email dated January 26, 2016 with the attachments from various other Tribunal files, some of which may have been closed by the Tribunal. Some attachments may not pertain to the above noted Application 2015-20182-I. You are required to file the Request for Reconsideration for the above-noted file 2015-20182-I and file documents related to this file only.

You are also required to provide a hard copy of your Request for Reconsideration Form 20 and supporting documents with the Tribunal. Please ensure you also deliver a copy to the Respondents named for HRTO File Number 2015-20182-I.

The Tribunal will not process your Request for Reconsideration until you comply with the Tribunal’s Request.

14On February 5, 2016 the Tribunal returned the applicant’s Form 20 to him and notified him by e-mail and mail that it was incomplete, and that he had faxed it to the wrong fax number, had attached documents that were not relevant to this Application and had not filed a Form 23 Statement of Delivery.

15On February 9, 2016 the applicant e-mailed the Tribunal and advised he did not understand why the Tribunal returned his Form 20 to him when it was clear that the Tribunal received it.

16On March 31, 2016 the applicant wrote to the Tribunal and asked if there were any updates on this Application. In response the Tribunal e-mailed the applicant a copy of its February 5, 2016 letter. The applicant also sent another e-mail on March 31, 2016, which he copied to many people who were not parties to this Application.

17The Tribunal e-mailed the applicant again on April 1, 2016 and asked him to stop copying his emails to non-parties. The Tribunal reminded the applicant he had yet to provide a complete Form 20 and had not filed a Form 23, and it would not take further action on his request until the Tribunal received them.

18On April 6, 2016 the applicant e-mailed the Tribunal and asked for a response to his February 9, 2016 e-mail. The Tribunal referred the applicant to its February 5, 2016 letter.

19On April 12, 2016 and again on May 3, 2016 the applicant faxed a copy of his Form 20 to the Tribunal along with a copy of the Tribunal’s January 26 and February 5, 2016 letters to the applicant. On May 5, 2016 the Tribunal e-mailed the applicant and reminded him that he had to provide a hard copy of his Form 20 as per its January 26, 2016 e-mail, and until he did so no further action would be taken. The Tribunal also advised that the Tribunal would no longer respond to any further emails regarding this file as you have failed to comply with our directions, and that any further documents regarding the matter must be filed by fax, regular mail, in person or courier.

20On May 9, 2016 the applicant faxed another copy of his Form 20 to the Tribunal with attachments and asked why he had to file a hard copy of his Form 20 when he had been permitted to e-mail in the past.

21On September 27, 2016 the applicant e-mailed the Tribunal and advised he had not heard anything from the Tribunal since May 5, 2016.

22The Tribunal e-mailed the applicant on September 30, 2016 and advised the applicant that it had received the applicant’s fax, dated May 9, 2016 and his e-mail, dated September 27, 2016. It stated that as it had previously advised the applicant, he must provide a Form 23 confirming his Form 20 and supporting documents were provided to the respondents’ counsel. It further stated that unless and until the Tribunal received the Form 23, it would take no further action. It reiterated that any further documents must be filed by fax, regular mail, in person or courier.

23The applicant e-mailed another copy of his Form 20 to the Tribunal on November 14, 2016 and although it appears he did not file a Form 23 Statement of Delivery as repeatedly requested, his Form 20 was acknowledged by the Tribunal on November 28, 2016 as filed on November 14, 2016.

Decision

24First, even if I accept the applicant may not have received the Decision until January, 2016 in light of his new address this is not a basis to relieve against the thirty day timeline for filing a reconsideration request. This is because the applicant was obliged by the Tribunal Rule 1.13 to notify the Tribunal of any change in his contact information in a timely manner (“as soon as possible”), which he failed to do. Additionally the applicant had identified regular mail as his preferred method of contact which is the method by which the Decision was delivered.

25I also accept that the applicant many times attempted to file his Form 20; however, he did not comply with the Tribunal’s requirements, specifically failing to file a Form 23 Statement of Delivery. The failure to deliver the Reconsideration Request to the responding party and confirm the same to the Tribunal is more than a technical defect. This requirement is to ensure the opposing party is on proper notice of, in this particular case, a request to reopen the Tribunal’s decision. Notice is a fundamental component of procedural fairness and the applicant’s repeated failure to confirm that notice had been provided was a fatal flaw.

26In the end, the applicant’s Form 20 was filed beyond the 30 days set out in Rule 26.1. Even if the applicant did not receive it until January, 2016 I conclude that any delay in receipt arose from his failure to provide current contact information as he was obliged to do. Further delays arose from his failure to comply with the Tribunal’s Rules of Procedure, even in the face of repeated and specific directions. On that basis alone the applicant’s request for reconsideration is dismissed. However, in the alternative I also have addressed the substantive aspect of the applicant’s request, below.

Request for Reconsideration

27The applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

28The applicant relies on Rule 26.5(a), (c) and (d). However, his only submission is that the Tribunal should review some 2014 e-mails between him and the corporate respondent that he attaches to his Form 20, and which he calls new evidence. Given the e-mails are from 2014, the applicant had these in his possession at the time of the August 12, 2015 hearing. As such, the applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier, pursuant to Rule 26.5(a).

29The applicant also provides no reason, pursuant to Rule 26.5(c), why my findings in the Decision are in conflict with established jurisprudence.

30The applicant also does not point out any other factors that exist that, in my opinion, outweigh the public interest in the finality of Tribunal decisions, pursuant to Rule 26.5(d).

31In 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.

order

32The applicant’s request for reconsideration is denied.