Ayesha Najib v. Preston Phipps Inc., 2016 HRTO 388

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ayesha Najib

Applicant

-and-

Preston Phipps Inc.

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: March 24, 2016

Citation: 2016 HRTO 388

Indexed as: Najib v. Preston Phipps Inc.

WRITTEN SUBMISSIONS

Ayesha Najib, Applicant

Self-represented

Preston Phipps Inc., Respondent

Andrew Zabrovsky, Counsel

1On December 15, 2015, the Tribunal issued its Decision in this Application, 2015 HRTO 1688, dismissing the Application as abandoned. The applicant has asked the Tribunal to reconsider its Decision.

background

2The Tribunal’s Decision found as follows at paras. 3 to 5:

On October 29, 2015, the Tribunal wrote to the applicant asking her to inform the Registrar in writing within 30 days of the date of the letter whether the other proceedings remained ongoing and, if possible, to indicate when they were expected to be completed. The letter went on to warn the applicant that failure to provide the requested information might result in the Tribunal dismissing the Application as abandoned.

The applicant has not responded to the Tribunal’s October 30, 2015 letter. The Tribunal’s letter was sent by regular mail and was not returned. There is no indication that it has not been received by the applicant.

In the circumstances, the applicant is deemed to have abandoned the Application and the Application is dismissed.

THE REQUEST FOR RECONSIDERATION

3In her Request for Reconsideration (“Request”), the applicant argues that she did not receive the October 29, 2015 correspondence until December 13, 2015 because she was out of town. The Decision was released on December 15, 2015.

4The respondent opposes the Request.

DECISION

5Under 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.

6The 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.

7The 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.

8As 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.

9I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

10The applicant relies on Rule 26.5 (b). The issue raised by this Request is ultimately whether it can be said that the applicant “through no fault of her own did not receive” the October 29, 2015 correspondence from the Tribunal. The fact is that she did receive it and was aware of its contents and the possible consequences if she failed to respond to it by December 13, 2015, before the Decision was released. At that time she would have known that the Application was in danger of being dismissed because she was well beyond the time for responding to the Tribunal. Yet she took no steps to contact the Tribunal to make it aware of her circumstances and to provide the requested information or seek an extension to do so. I also note that the applicant provides no details about her absence from the mailing address provided to the Tribunal for more than six weeks. In my view it cannot be said that the applicant did not receive timely notice of the Tribunal’s directions, through no fault of her own.

11Even after receiving the Decision, the applicant apparently took no steps until filing this Request on January 14, 2016.

12The applicant also relies on Rule 26.5 (c), but points to no jurisprudence with which the Decision is in conflict. I am not convinced that the Decision is in conflict with established Tribunal jurisprudence.

13In 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.