Despres v. The Crossbar Inc., 2016 HRTO 670

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Desiree Despres

Applicant

-and-

The Crossbar Inc.

Respondents

RECONSIDERATION DECISION

Adjudicator: Leslie Reaume

Date: May 17, 2016

Citation: 2016 HRTO 670

Indexed as: Despres v. The Crossbar Inc.

APPEARANCES

Desiree Despres, Applicant

Self-represented

The Crossbar Inc., Respondent

Kenneth Ward, Representative

1The respondent seeks reconsideration of the Decision, 2015 HRTO 1624 upholding the Application following a hearing where the respondent did not attend.

Applicable Principles relating to reconsideration

2In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the Tribunal has made a decision in a case, parties are entitled to treat the matter as closed, subject to limited exceptions.

3The circumstances in which a Request for Reconsideration may be granted are set out in Rule 26.5 of the Tribunal’s Rules:

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.

The Request for Reconsideration

4The respondent restaurant is owned by Kenneth Ward who is acting as the respondent representative in this matter. Mr. Ward received the Confirmation of Hearing dated June 8, 2015 which indicated that the hearing would take place on September 21, 2015. The dates for compliance with Rules 16 and 17 were set for June 29, 2015 and August 7, 2015.

5Mr. Ward states that at some point before June 29, 2015, his wife received a call at the restaurant from someone purporting to be from the Tribunal, advising her that the hearing would not be taking place as scheduled.

6The respondent’s written Request for Reconsideration does not provide details of the call. In the material, the respondent states that an investigation should be conducted into who conspired to convince the respondent that the Application was abandoned. The written material also refers to the respondent’s inability to attend the hearing because of medical issues.

7The parties participated in a conference call for the purpose of hearing oral submissions on the request and to clarify the respondent’s allegations about receiving a call from the Tribunal. Mr. Ward’s wife confirmed that she received a call and was told that the hearing was not going ahead.

8A review of the file indicates that the respondent filed a Response to the allegations but neither party made contact with the Tribunal after the Confirmation of Hearing was issued. In addition, neither party complied with their obligations under Rules 16 and 17. Mr. Ward states that he did not comply with the rules because of the telephone call his wife allegedly received from the Tribunal. When Mr. Ward received a copy of the Tribunal’s final decision in this matter, he wrote to the Tribunal requesting reconsideration of the decision.

ANALYSIS

9It is clear that the respondent intended to defend the Application. There is no indication in the file that the staff of the Tribunal placed a call to the respondent. On the other hand, the applicant did not comply with the rules and deadlines set out in the Confirmation of Hearing which is at times an indication of abandonment. Mr. Ward’s wife had a clear recollection of receiving the call at the restaurant and of advising Mr. Ward that the hearing would not be proceeding.

10I understand that the applicant will now be required to participate in another hearing process, however, in my view, these circumstances fall within the parameters of proper notice and on that basis I grant the reconsideration request.

ORDER

• The Request for Reconsideration is granted:

• The Tribunal will set this Application for a one day hearing with new compliance dates for Rules 16 and 17.