Cabral v. TJX Canada (Winners Merchants Inc.), 2016 HRTO 565

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marcio Cabral

Applicant

-and-

TJX Canada (Winners Merchants Inc.)

Respondent

RECONSIDERATION DECISION

Adjudicator: Ken Bhattacharjee

Date: April 28, 2016

Citation: 2016 HRTO 565

Indexed as: Cabral v. TJX Canada (Winners Merchants Inc.)

WRITTEN SUBMISSIONS

Marcio Cabral, Applicant

Self-represented

Introduction

1The purpose of this Reconsideration Decision is to address the applicant’s Request for Reconsideration of the Tribunal’s Decision, 2015 HRTO 1389, which dismissed the Application.

BACKGROUND

2On August 26, 2014, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3On April 15, 2015, the Tribunal issued a Notice of Rescheduled Hearing, which informed the parties that the hearing of the merits of the Application was scheduled for October 2, 2015. The Notice also set out the Tribunal’s Rules of Procedure with respect to disclosure of documents and witnesses. Rule 16 requires each party to deliver to every other party and file with the Tribunal a list and copy of all documents that it intends to rely on no later than 45 days prior to the first scheduled day of hearing. Rule 17 requires each party to deliver to every other party and file with the Tribunal a witness list and brief statement summarizing the expected evidence of each witness no later than 45 days prior to the first scheduled day of hearing. Neither party complied with these Rules.

4On August 25, 2015, the Tribunal issued a Case Assessment Direction (“CAD”), which confirmed that the hearing was scheduled for October 2, 2015, and directed the parties to comply with Rules 16 and 17. In response, the respondent filed a witness statement and documents on August 27, 2015, and the applicant filed the name of a witness and documents on September 9 and 10, 2015.

5On October 2, 2015, the respondent attended the hearing at the place and time that was set out in the Notice of Rescheduled Hearing, but the applicant did not appear. The Tribunal dismissed the Application because of the applicant’s failure to appear.

6On November 9, 2015, the applicant filed a Request for Reconsideration of the Tribunal’s Decision.

ANALYSIS

7Section 45.7(1) of the Code provides that any party to a proceeding before the Tribunal may request that the Tribunal reconsider a final decision in accordance with the Tribunal rules.

8Rule 26.5 of the Tribunal’s Rules 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.

9The Tribunal has also issued a Practice Direction on Reconsideration to provide guidance to the community on the nature of the reconsideration process. The Practice Direction states: “Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO.”

10In his Request for Reconsideration, the applicant indicated that the Tribunal’s Decision should be reconsidered in accordance with Rule 26.5 b) and d). Specifically, he stated:

I did not receive notice of the hearing being scheduled for October 2, 2015. Also my lawyer abruptly dropped out of my case. And my friend who is helping me with my case had a major family emergency around the same time and when we were able to follow up on this we missed my October 2 hearing already.

11I disagree that the applicant did not receive notice of the hearing. Even if it is true that he did not receive the Notice of Rescheduled Hearing dated April 15, 2015, he did receive notice of the hearing by way of the Tribunal’s CAD dated August 25, 2015, which he responded to by filing the name of a witness and documents on September 9 and 10, 2015. If the applicant was unable and/or unprepared to attend the hearing on October 2, 2015 hearing, he had an obligation to request an adjournment and rescheduling of the hearing, not to simply fail to appear without notifying the Tribunal or the respondent.

12Accordingly, I am not satisfied that the applicant did not receive notice of the hearing, or that other factors exist that outweigh the public interest in the finality of the Decision.

ORDER

13The Request for Reconsideration is dismissed.