Chopra v. Intertechnique Hair Salons Inc., 2016 HRTO 827

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mukesh Chopra

Applicant

-and-

Intertechnique Hair Salons Inc. o/a Donato Salon & Spa

Respondent

RECONSIDERATION DECISION

Adjudicator: Alison Renton

Date: June 20, 2016

Citation: 2016 HRTO 827

Indexed as: Chopra v. Intertechnique Hair Salons Inc.

WRITTEN SUBMISSIONS

Mukesh Chopra, Applicant

Self-represented

Intertechnique Hair Salons Inc. o/a Donato Salon & Spa, Respondent

Teresa Jackson, Representative

1By Decision dated June 3, 2016, the Tribunal dismissed the Application as abandoned and cancelled the hearing dates that were scheduled for June 29 and 30, 2016 (“the cancelled hearing dates”). The Tribunal found that the applicant had not complied with his disclosure obligations as set out in the Notice of Hearing, or complied with directions set out in a Case Assessment Direction dated May 20, 2016 (“the May CAD”), or otherwise communicated with the Tribunal, and dismissed the Application as abandoned. See Chopra v. Intertechnique Hair Salons Inc., 2016 HRTO 765.

2The applicant filed a Request for Reconsideration on June 6, 2016 (“the Request”). He submitted that he complied with his disclosure obligations, attached copies of documentation to his Request, and advised that he delivered his material to the respondent on May 27, 2016. Furthermore, he advised that he faxed his materials to the Tribunal on May 27, 2016. He provided a fax transmittal sheet dated May 27, 2016 which listed the Tribunal’s fax number.

3The Tribunal issued a Case Assessment Direction on June 10, 2016 (“the June CAD”). It noted that the word “error” appeared beside the Tribunal’s fax number on the applicant’s documentation and that there was no indication that it was successfully transmitted to the Tribunal. The Tribunal directed the respondent to email proof that the fax to the Tribunal on May 27, 2016 was successfully transmitted, and if it had not, to provide submissions about why, despite the error in transmitting, he had no intention of abandoning his Application. It asked him to confirm if he was still available for the cancelled hearing dates in the event that the Request was upheld.

4In the CAD, the Tribunal directed the respondent to file submissions responding to the information that applicant was directed to provide, whether he intended to abandon his Application, and whether his Request should be granted. It also asked the respondent to confirm if it was still available for the cancelled hearing dates in the event that the Request was upheld.

5Both parties filed submissions.

6The applicant submits that he faxed his material to the Tribunal and he was not aware if, due to an error in transmission, it was not received. He advised that he was still available for the cancelled hearing dates.

7The respondent acknowledged that it received the applicant’s materials on May 28, 2016. Despite this, the respondent submits that the applicant still has not provided the information that the May CAD required, specifically witness statements, and that he had not provided any documents which would support a finding of discrimination. The respondent submits that the applicant’s case should be considered abandoned. Alternatively, it submits, it can make itself and its witnesses available for the cancelled hearing dates.

law and analysis

8A party is entitled to request reconsideration of a final Tribunal decision, within 30 days from the date of the decision, under Rule 26 of the Tribunal’s Rules of Procedure (“the Rules”).

9Rule 26.5 provides:

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 have 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 facts exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

10Rule 26.5(d) is applicable here. The Tribunal dismissed the Application on the basis that it had been abandoned. While the applicant’s fax on May 27, 2016 did not appear to be transmitted to the Tribunal, as it contains an error message, and he has not identified his witnesses or provided statements for them, he did deliver his documents to the respondent and he attempted to fax them to the Tribunal before the deadline set out in the May CAD. This is sufficient to demonstrate to me that he did not intend to abandon his Application. The Request is therefore granted. The June 30 hearing date is no longer available. The hearing will take place on June 29 and if additional dates are required, they will be canvassed with the parties on June 29.

11In the applicant’s documentation, he attached a statement of a Mr. Khalid, dated July 2015. It is unclear whether or not the applicant is intending to call Mr. Khalid as a witness, and the applicant has not identified any other witnesses. The applicant has not confirmed that he himself will testify, despite being directed by the Tribunal in the May CAD to do so.

12The Tribunal directs that by June 23, 2016, he is to email the Tribunal, copying the respondent by email, with the names of his witnesses and provide details about what his witnesses will say. In the event that the applicant does not do this, he himself will be permitted to testify, but his evidence will be limited to what is contained in the pleadings, and he will not be able to call any other witnesses.

order

13The Tribunal orders the following:

a. The decision to dismiss the Application as abandoned is set aside.

b. The hearing will take place on June 29, 2016. The parties will receive another Notice of Hearing confirming the date, and setting out the time and location. If additional hearing dates are required, the Tribunal will canvass additional dates with the parties on June 29, 2016.

c. By June 23, 206, the applicant is directed to email the Tribunal, copying the respondent by email, the names of his witnesses (including himself) and provide details about what his witnesses will say.

14The Tribunal will also offer mediation-adjudication to the parties at the commencement of the hearing, in accordance with Rule 15A “Mediation-Adjudication with Agreement of the Parties” of the Tribunal’s Rules of Procedure (“the Rules”). The Tribunal’s Rules are found on its website at www.sjto.gov.on.ca/hrto.