Human Rights Tribunal of Ontario
B E T W E E N:
Shane Cantwell Applicant
-and-
Toronto East General Hospital Respondent
RECONSIDERATION DECISION
Adjudicator: Josée Bouchard Date: December 20, 2016 Citation: 2016 HRTO 1637 Indexed as: Cantwell v. Toronto East General Hospital
INTRODUCTION
1The applicant seeks reconsideration of the Tribunal’s November 7, 2016 Decision, 2016 HRTO 1441, which dismissed his Application as abandoned. The Request for Reconsideration is filed pursuant to s. 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
THE LAW
2Rule 26.5 of the Tribunal’s Rules of Procedure states that 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.
BACKGROUND
3The Tribunal deemed the applicant to have abandoned his Application because of his failure to comply with an October 14, 2016 Case Assessment Direction (“CAD”) directing him to deliver to the respondent and file with the Tribunal, by October 21, 2016, the documents he intends to rely upon at the hearing, a list of his witnesses and a detailed statement describing what his witnesses will say when they testify. The applicant also failed to respond to an October 27, 2016 Registrar’s letter directing him to comply with the directions of the CAD by November 3, 2016. Finally, the applicant failed to otherwise communicate with the Tribunal.
4In his Request for Reconsideration the applicant indicates that, in his original Application, he requested that information be sent to him by mail only, and not email. It appears that the applicant may have received some but not all of the Tribunal’s communications, as some of the correspondence was sent by courier to ensure expediency, but was later returned to the Tribunal.
5On November 18, 2016, the Tribunal directed the respondent to file written submissions by December 12, 2016, in response to the request for reconsideration.
6The respondent has not filed written submissions and the time for doing so has passed.
ANALYSIS
7I am satisfied that the applicant’s Request for Reconsideration of Tribunal’s Decision 2016 HRTO 1441, dismissing the Application as abandoned, ought to be granted pursuant to Rule 26.5(b) of the Tribunal’s Rules of Procedure.
8The Application was dismissed because it was deemed to have been abandoned by the applicant. In other words, the Tribunal dismissed the Application because it concluded that the applicant did not intend to pursue it. However reasonable that conclusion may have been on the basis of the record at that time, the applicant’s November 10, 2016 letter indicating his reasons for not responding and including his disclosure documents and witness statements shows that the applicant did intend to pursue his Application at the relevant time. Through no fault of his own, it appears that the applicant did not receive notices related to the proceeding or hearing.
9In the circumstances, it would be fundamentally unfair to maintain Decision 2016 HRTO 1441 dismissing the Application as abandoned.
Order
10Accordingly, the applicant’s Request for Reconsideration of Decision 2016 HRTO 1441 is granted and the Tribunal will reschedule the hearing date.
Dated at Toronto, this 20th day of December, 2016.
“Signed by”
Josée Bouchard Vice-chair