HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Delores Grey
Applicant
-and-
Ontario Secondary School Teachers’ Federation
Respondent
REconsideration DECISION
Adjudicator: Mary Truemner
Indexed as: Grey v. Ontario Secondary School Teachers’ Federation
WRITTEN SUBMISSIONS
Delores Grey, Applicant
Self-represented
Introduction
1This Application was filed on October 24, 2014. It alleges discrimination with respect to membership in a vocational association because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, it appears to allege that the respondent discriminated against the applicant by withdrawing a grievance relating to the applicant’s attempts to be reinstated to employment.
2The Application was dismissed as abandoned, (2015 HRTO 1211), but the applicant has requested the Tribunal to reconsider its Decision. This Reconsideration Decision denies the Reconsideration Request.
background
3On May 15, 2015, the Tribunal issued a Case Assessment Direction (“CAD”). It stated that it appeared that all or part of the Application had no reasonable prospect of success because the Tribunal has held on a number of occasions that it is not discrimination for a union or association to decide not to file or pursue a human rights grievance, unless the reason for doing so was based on one of the grounds in the Code. Without referring to a date, the CAD advised the parties that the Tribunal would schedule a summary hearing:
The Registrar will schedule a half day hearing by conference call. The parties will receive a notice of hearing, setting out the time, date and telephone numbers for the preliminary hearing.
4On June 22, 2015, the Tribunal delivered to the parties a Notice of Summary Hearing, which advised that the summary hearing would take place by conference call on September 14, 2015. The Notice of Summary Hearing provided details for the parties to use to call in on that date.
5On September 14, 2015, the respondent appeared on the conference call, but not the applicant. The Tribunal held down the hearing for 30 minutes as is its practice when a party does not appear, and then granted the respondent’s request to have the Application dismissed as abandoned. That same day, the Tribunal issued a written Decision, indicating that the Tribunal was satisfied that the applicant had received notice of the summary hearing, but she failed to appear so the Application was dismissed as abandoned.
6The applicant filed her Request for Reconsideration on October 21, 2015. The Tribunal has not required the respondent to provide any response to her Request.
decision
7Under 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.
8The 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 April 2014). Most relevant to this Reconsideration Decision are Rules 26.1 and 26.5 which state:
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.
9The Tribunal’s Practice Direction on Reconsideration explains that reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so.
10In her Request for Reconsideration, the applicant relied on Rule 26.5(b) of the Tribunal’s Rules, indicating that she did not appear at the summary hearing because she did not receive the Notice of Summary Hearing.
11The applicant states that she did not receive the Notice of Summary Hearing but I note that it was sent to the correct address and not returned to the Tribunal as undeliverable. I further note that while the applicant’s preferred method of delivery is by email, under Rule 1.22 of the Tribunal’s Rules of Procedure, mail is an acceptable method of delivery so that receipt of the Notice of Summary Hearing may be deemed to have occurred in this case. Even if I were to accept the applicant’s assertion that she did not receive the notice document itself, I find for the reasons below that the applicant had sufficient notice that the summary hearing was scheduled, and I therefore dismiss her Request for Reconsideration.
reasons
12Having reviewed the file, I am satisfied the applicant received the May 15, 2015 CAD which described the nature of the summary hearing, which would be the next step in the processing of the Application, and which would soon be scheduled. The Tribunal sent the Notice of Summary Hearing to the applicant on June 22, 2015. On June 26, 2015, four days after the Notice of Summary Hearing was mailed to her, the applicant filed a Request for Order During Proceedings (Form 10), stating:
I've requested production of documents. I was told by Ms. Ensslen [counsel for the respondent] they would not [sic] until a date had been set. A date is set, I will request again.
13In the applicant’s subsequent Form 10 dated July 22, 2015 and filed July 23, 2015, the applicant wrote:
I've provided information that OSSTF was holding back relevant documents. I'm asking once again for all the information Ms. Ensslen has to be released. As I said before, I would like to mount a defence. I don't want to be surprised during the assessment that is scheduled for September 14, 2015.
14On August 10, 2015, the respondent filed and delivered to the applicant by email a Form 11 responding to the applicant’s requests for production:
As no Notice of Hearing has yet been issued, and indeed a Summary Hearing is scheduled for September 14, 2015, the request for production of documents is premature.
15Later on the same day, August 10, 2015, the Tribunal received an email from the applicant which refers to the above Form 11, and it is clear from the email that she read the Form 11.
16On the basis of the above documents, which the applicant either authored or read, it would appear that the applicant did receive the Notice of Summary Hearing as how else would she have known of the September 14, 2015 date? I find, therefore, that the applicant did receive the Notice of Summary Hearing. It may be that she misplaced or forgot it, and failed to note the details in her calendar, but that is not sufficient reason to reconsider the decision.
17If I am wrong, and the applicant did not receive the document entitled, “Notice of Summary Hearing”, given the references to the summary hearing and its date in the above communications, I am satisfied that the applicant had sufficient notice of it and its date, through another means, well before it took place. She also knew by virtue of the CAD that the summary hearing would be held by way of conference call, and that she was to have received information about how to call in.
18The Tribunal’s Rule 26.5 (b) makes it clear that while absence of notice can be a basis for reconsideration, it is qualified by the requirement that it be “through no fault of [the applicant’s] own”. The applicant appears to be arguing in various submissions, (they are difficult to understand), that she has problems in managing the process and that not having counsel is a disadvantage. However, if the applicant had any uncertainty about the details of the time of the conference call or method of connecting with it, then it was incumbent upon her to obtain those details from the Tribunal prior to September 14, 2015, the date she had known for weeks beforehand, if not months beforehand, was the date for the summary hearing. There is no record in the file of the applicant having contacted the Tribunal for any such clarification prior to the summary hearing.
19For the above reasons, I have decided not to exercise my discretion to grant her Request for Reconsideration. The Request for Reconsideration is denied.
Dated at Toronto, this 15th day of January, 2016.
“Signed By”
Mary Truemner
Vice-chair```