C.R. v. Peregrine Co-operative Homes, 2016 HRTO 317

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.R.

Applicant

-and-

Peregrine Co-operative Homes

Respondent

A N D B E T W E E N:

A.R. by his Litigation Guardian, C.R.

Applicant

-and-

Peregrine Co-operative Homes

Respondent

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw
Date: March 10, 2016
Citation: 2016 HRTO 317
Indexed as: C.R. v. Peregrine Co-operative Homes

WRITTEN SUBMISSIONS

C.R. and A.R. by his Litigation Guardian, C.R, Applicants

Self-represented

1These two Applications for contravention of settlement under section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), were consolidated and set for a preliminary hearing on February 1, 2016.

2The respondent attended, but the applicant C.R. did not attend either in her capacity as an applicant or as the litigation guardian for A.R. In Decision 2016 HRTO 146, the Applications were dismissed as abandoned on February 1, 2016 because the applicant failed to participate in the conference call hearing.

3This Reconsideration Decision addresses the applicants’ Request for Reconsideration of this Tribunal’s Decision dismissing the Applications.

RECONSIDERATION REQUEST

4On February 26, 2016, the applicant C.R. filed a Request for Reconsideration asking the Tribunal to reconsider its Decision on the basis that the decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.

5The applicant’s submissions consist of two sentences in which she states that she “was not able to attend the hearing due to my medical condition. At the time of the hearing and several hours after I had a flare up and was so ill that it prevented me from being able to communicate and attend.” The applicant also attaches a medical note from Dr. Sundaram, dated February 25, 2016 which states:

This letter is to confirm that [C.R.] was indeed ill on February 1, 2016, which prevented her from attending the scheduled hearing.

THE LAW

6Under 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.

7The Tribunal has issued Rules of Procedure, which govern 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). Rule 26 states in part:

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.

8The 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.

9As 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.

DECISION

10The applicant claims she missed the conference call because at the time of the hearing and for several hours after she had a flare up and was so ill it prevented her from being able to communicate and attend.

11While this may have prevented her from participating in the conference call hearing, the applicant did not provide any explanation as to why she failed to either advise the Tribunal or have someone on her behalf advise the Tribunal, at any time between the day of the hearing on February 1, 2016 and February 26, 2016, when she filed her Request for Reconsideration, why she had been unable to participate in the teleconference call even though she states her flare up lasted only during the hearing and for several hours afterward. The applicant also provides no reason why she could not have notified the Tribunal the morning of the hearing why she was unable to call in.

12The applicant provided a medical note dated February 25, 2016. Although the medical note stated that on February 1, 2016 the applicant was too ill to attend the hearing, there is no information in the note regarding whether the doctor knew the hearing required only a telephone attendance and not an in-person attendance. The medical note also does not explain how the doctor knew what the applicant’s condition was on February 1, 2016, which was three and a half weeks prior to the date of his medical note. The applicant also provides no explanation for why she was not able to seek medical attention earlier than three and a half weeks after the hearing date.

13In my view, the applicant has failed to offer an adequate explanation for her failure to give notice or alert the Tribunal that she was unable to participate in the hearing and, therefore, I am not satisfied that the applicant has shown that there is a basis under Rule 26.5 to reconsider the Tribunal’s Decision. In reaching my decision, I have considered the decision in Goodridge v. Toronto Police Services Board, 2011 HRTO 2208 (“Goodridge”). The Tribunal in Goodridge confirmed the applicant’s responsibility to contact the Tribunal and other parties as quickly as possible regarding illness and the need for an adjournment, as well as the need to provide requested medical evidence to support the request. The Tribunal noted in that case that because the doctor did not see the applicant until five days after the scheduled hearing day, there was “no actual medical evidence” to support the applicant’s assertions. I find this case to be similar, and I also do not accept that I have the requisite medical evidence to support the applicant’s request. The applicant has not in my view established that she was so incapacitated by illness that she could not telephone into the hearing, or that she was unable to seek medical attention at an earlier point.

14Based on my review of the reconsideration request, I find that the applicant has not established that the decision is in conflict with established case law or Tribunal procedure and that the proposed reconsideration involves a matter of general or public importance. The applicant’s request does not raise issues of general importance nor outweigh the public interest in the finality of Tribunal decisions.

15Accordingly, the request for reconsideration is denied.