Human Rights Tribunal of Ontario
B E T W E E N:
C.C.
Applicant
-and-
J.L. o/a […] Restaurant, C.L. and J.L.
Respondents
AND B E T W E E N:
J.C.
Applicant
-and-
J.L. o/a […] Restaurant, C.L. and J.L.
Respondents
RECONSIDERATION DECISION
Adjudicator: Alison Renton
Indexed as: C.C. v. J.L. o/a […] Restaurant
APPEARANCES
C.C. and J.C., Applicants
Mindy Noble, Counsel
J.L. o/a […] Restaurant, C.L. and J.L., Respondents
Robin Clinker, Counsel
1The respondents have filed a Request for Reconsideration (“the Request”) of a Decision 2014 HRTO 1625 (“the Decision”) issued by the Tribunal on November 4, 2014.
2In light of previous decisions anonymizing the names of the parties and the communities which are relevant to these proceedings, the Tribunal will continue to refer to the parties based upon their initials and not identify the communities which are relevant to this Reconsideration Decision.
Background
3This matter arises from Applications filed by the applicants. C.C., mother of J.C., filed an Application challenging the respondents’ refusal to allow her to bring her service animal into the respondents’ restaurant. J.C. worked at the restaurant. J.C.’s employment was terminated by the respondents after the incident involving C.C. J.C.’s Application alleged the termination breached the Human Rights Code, R.S.O. 1990. C. H.19, as amended (“the Code”).
4The respondents did not respond to the Applications. Consequently, after providing notice and in accordance with the Tribunal’s Rules of Procedure (“the Rules”), I ordered that the respondents were deemed to have accepted all the allegations set out in the Applications and waived their rights to notice or participation in the proceedings and that the Applications would proceed without further notice to the respondents. See 2013 HRTO 1730.
5I upheld the Applications and, amongst the remedies awarded, ordered the respondents, jointly and severally, to pay C.C. $10,000 as monetary compensation for injury to dignity, feelings and self-respect, and J.C. $15,000 as monetary compensation for injury to dignity, feelings, and self-respect.
6In a subsequent Reconsideration Decision, issued December 23, 2014, the Tribunal anonymized the names of the parties and the witnesses, including the previous Interim Decisions that had been issued. See 2014 HRTO 1821 (“the first Reconsideration Decision”).
Respondents' Request for Reconsideration
7The respondents filed their Request on March 9, 2015. They submit that they were entitled to notice but, through no fault of their own, they did not receive notice of the proceeding or the hearing. They submit that they have the right to respond to the allegations made against them and attend at any hearing in which orders or damages may be made against them. They request that the Decision be set aside, they be permitted to file a Response, and that a new hearing be scheduled.
8In the Request, the respondents advised that on July 16, 2013, they left the community where the incidents with the applicants were alleged to have occurred (“the first community”), and moved to another community (“the second community”). They submit that they did not receive the Applications while living in the first community, and they did not receive any of the materials sent to them by the Tribunal or the applicants in the second community, apart from the Decision. They advise that they have problems with mail delivery in the second community.
9I issued a Case Assessment Direction (“the April CAD”) directing the applicants to respond to the Request for Reconsideration (“Response to the Request”).
10At paras. 5 and 6 of the April CAD, the Tribunal stated:
The Tribunal’s records in these files indicate that the following correspondence was issued by the Tribunal to the respondents by regular mail, which was not returned by Canada Post as being undeliverable:
June 18, 2013 Notice of Applications and copies of the Applications were sent separately to each respondent at the [first community];
September 13, 2013 Registrar’s letter, enclosing the two Applications, June 18, 2013 Notice of Applications, and Interim Decision dated August 21, 2013 were sent to the respondents at the [second community] address;
October 11, 2013 Interim Decision (2013 HRTO 1730) and covering letter were sent separately to each respondent at the [second community] address. (As set out in para. 1 above [of the April CAD], this Interim Decision found the respondents in default and ordered that they were not entitled to further notice to participate in these proceedings.);
October 16, 2013 Notice of Case Management Conference Call scheduled for December 3, 2013 was sent to the respondents at the [second community] address (At the December 3, 2013 Conference Cal, at which the respondents did not participate, the April 2014 hearing dates were scheduled);
April 1, 2014 Case Assessment Direction was sent separately to each respondent at the [second community] address; and
November 5, 2014 covering letter and Decision dated November 4, 2014 were sent separately to each respondent at the [second community] address.
The Tribunal’s records in these files indicate that the following correspondence that was issued to the respondents was returned to the Tribunal as being undeliverable:
August 21, 2013 Interim Decision was sent to the respondents by regular mail and courier at the [first community] address (this was subsequently sent by the September 13, 2013 Registrar’s letter set out above);
November 4, 2014 Decision was sent by regular mail and courier to the respondents at the [first community] address; and
December 23, 2014 Reconsideration Decision was sent by regular mail to each of the respondents at the [second community] address and by courier and regular mail to the respondents at the [first community] address.
11The Tribunal issued another Case Assessment Direction (“the June CAD”) in which it determined that it would be appropriate to hear evidence from the respondents in relation to the information set out in their Request and their delay in filing their Request. The Tribunal stated that it would convene a case management call to discuss, amongst other issues, how the respondents’ evidence would be received, the identity of any witnesses, and dates.
12The case management call was held on July 13, 2015. During the call, it was agreed that the personal respondents would give their evidence by video-conference, likely at their counsel’s office, and the applicants, their counsel, and the Vice-chair would be located at the Tribunal’s hearing centre in Toronto. One of the applicants requested that a real-time translator be present for her as an accommodation.
13Subsequent to the case management call, the Tribunal emailed copies of the envelopes of the materials sent to the respondents that had been returned to the Tribunal, as identified above and in the April CAD, and advised that the originals would be present during the reconsideration hearing.
Reconsideration Hearing
14The reconsideration hearing was held on August 31, 2015. The respondents participated from their counsel’s office in Thunder Bay by video-conference. The applicants, their counsel, and a real time captioner were present at the Tribunal’s hearing centre in Toronto, where I, as Vice-chair, was also located.
15I heard evidence from the personal respondents. The applicants did not object to J.L. being present during C.L.’s testimony. I also heard evidence from Anthony Smaha, a Canada Post supervisor, C.C. and J.C. A number of documents were entered as exhibits, including the witness statements.
16During C.L.’s evidence, the Tribunal directed the applicants’ counsel to put to C.L. any inconsistencies between her witness statement and testimony, if she was going to ask the Tribunal to draw any conclusions about C.L.’s credibility and/or reliability. The applicants’ counsel then asked questions about what she perceived were inconsistencies between the witness statement and her oral testimony.
17After her evidence in examination-in-chief and cross-examination, I asked C.L. some questions. The parties had the opportunity to ask questions following the Tribunal’s questions. Ms. Noble asked some further questions, but Ms. Clinker did not.
18The parties filed their final submissions in writing.
The Evidence
The Respondents' Evidence
C.L.'s Evidence
19C.L. is the wife of J.L., who owned the restaurant, and she managed it. She agreed she saw her witness statement before it was filed with the Tribunal. She testified that, apart from receiving the Decision, the respondents did not receive any other documentation from the Tribunal.
20C.L. testified that she and J.L. operated the restaurant in the first community for approximately two years. They lived above the restaurant. She confirmed in both examination-in-chief and cross-examination that the address for both the restaurant and their residence was on K[…]Street, the first community. There is no dispute about the street address in the first community.
21Although she could not recall the exact date, at the beginning of June 2013, C.L. and J.L. closed the restaurant. On July 16, 2013, they moved from the first community to the second community, a community with approximately 3,000 people.
22In the second community they opened the restaurant in December 2013, with the same name as that used in the first community. C.L. and J.L. lived above the restaurant and had the same street address on M[…] Street, the second community as the restaurant. There is no dispute about the street address in the second community. In cross-examination, C.L. testified that in the second community, the restaurant was well known, was part of a bowling alley, the only one in town, and one of about nine restaurants in the second community.
23In both communities, C.L. testified, they did not receive door-to-door mail delivery. Instead, their personal mail and the mail for their restaurant was delivered to a post office box which was located in the post office of their community.
24In the first community, C.L. testified, she would go to the post office and check it about one or twice a week. After they closed the restaurant, they continued to receive their residential mail at the post office box. C.L. checked the post office box before they moved to the second community. She also testified, in cross-examination, that she left the M[…] street address as a forwarding address with the post office in the first community and with the people who purchased their property as she wanted their mail to be forwarded to their new address in the second community. In cross-examination, she testified that she did not include or subsequently provide a post office box number for the second community address to either the post office or the purchasers of their property in the first community.
25C.L. testified that the mailing address for the restaurant and their residence in the second community was the M street address plus the postal code and post office box number. She provided both the postal code and the post office box number in her evidence. She testified that either she or her daughter would pick up the mail once or twice a week. Her daughter moved in with them the last weekend in April 2014.
26In cross-examination, C.L. confirmed that it was important to pick up the mail from the post office because she was operating a business and confirmed her evidence in examination-in-chief that she picked it up once or twice a week. When it was pointed out to her that her witness statement said that she picked up the mail in the second community once a week or once every two weeks, she testified that this information was accurate.
27She denied, in cross-examination, that a post office employee told her to pick up her mail in a timely manner, and denied the suggestion that she let the mail accumulate. When she picked up the mail, she picked up all of the mail. When it was pointed out to her in cross-examination that her witness statement said if the mail was not picked up in a timely manner it would be removed from the post office box and be held, she testified that this is what she was told when she signed up for the post office box in the second community.
28C.L. testified that while in the second community they had problems receiving their mail, including bills from the local hydro company and phone company, and a lot of times they did not receive their mail at all. Various businesses, including local businesses such as the local hydro company, did not include the post office box on their address. She testified that they had to go to the second community’s hydro company directly to pick up bills and that she solved the problem on her own as she now receives bills from the local hydro company on-line. She agreed, in cross-examination, that the local businesses should know to include the post office box number on their mail and agreed that the difficulties that she had with the local hydro company and how she resolved the problem receiving her bills was not included in the Request or her witness statement.
29During her cross-examination, C.L. testified that she received mail in the post office box for other people, but she was honest and put that mail back into the mail. She testified that she raised concerns about their missing mail with the second community’s post office. She went to the post office to complain and they told her that she could not solve her problem. The post office employee was vulgar to her once confronted with the mail problem, and C.L. testified that she was verbally assaulted. During cross-examination, C.L. testified that her daughter also made complaints to the second community’s post office about not receiving their mail. She agreed, during cross-examination, that this information was not included in the Request or in her witness statement and that she had no record of complaining about not getting her mail.
30C.L. admitted that the respondents received mail from the Tribunal sent to their address in the second community. During her examination-in-chief, she testified that they received a package in their post office box at the beginning of November 2014, and it contained the Decision. She testified that she was shocked because they had not been previously notified by the Tribunal. She confirmed, during cross-examination, that she received the Decision in early November. In re-examination, she testified that her daughter picked up the package and she received the Decision in late November or early December when she was working 14 hour days.
31In cross-examination, she admitted that the mail that they received from the Tribunal did not have a post office box number on it. Further, she agreed that they received a letter from the applicants’ counsel’s office, the Human Rights Legal Support Centre (“the Centre”) dated November 6, 2014, which also did not have a post office box number included in the address. This letter was entered as an exhibit.
32C.L. testified, during her examination-in-chief, that she did not know that the Tribunal sent three separate copies of the Applications to the respondents in June 2013 to the first community and she denied receiving any mail from the Tribunal until they received the Decision while living in the second community. She agreed in cross-examination that the address the Tribunal used for the first community was correct, although the post office box number was missing. Further during cross-examination, she denied receiving the Applications sent by the Tribunal in June 2013, and denied the suggestion that the respondents chose not to respond to the Applications. She confirmed that they did not respond because they did not receive the Tribunal’s documents. She agreed, in cross-examination that she had no evidence to show that the Tribunal’s June 2013 correspondence to each of the respondents was returned to the Tribunal.
33C.L. testified during her examination-in-chief that after the respondents received the Decision, she contacted a lawyer who practiced in Thunder Bay, Robert Mullen, about the Decision. Mr. Mullen was on vacation so C.L. spoke with his secretary and provided her with the Decision. While he was on vacation, C.L. testified that she did not check into time frames to file anything in relation to the Decision because she left the Decision with Mr. Mullen’s secretary. In cross-examination, she testified that she did not contact the Tribunal, look at the Tribunal’s website or look at its practice directions about filing reconsideration requests. She provided Mr. Mullen’s secretary with a copy of the Centre’s November 2014 letter, along with the Decision.
34When Mr. Mullen returned from vacation, he telephoned C.L. and referred her to Ms. Clinker’s law firm. She contacted Ms. Clinker’s law firm the same day that she spoke with Mr. Mullen.
35The time frames for when C.L. contacted Mr. Mullen, spoke with Mr. Mullen, and contacted Ms. Clinker’s law firm changed during her testimony. In examination-in-chief, she testified that she contacted Mr. Mullen at the beginning of November after the respondents received the Decision. She testified that he was on vacation for about three weeks and she spoke with him in late November or early December 2014. Later in her evidence, she told the Tribunal that she spoke with Mr. Mullen in early December 2014, and confirmed that it was before, not after, Christmas, when she spoke with him. In cross-examination, she testified that she spoke with Mr. Mullen when he returned from his vacation in early December 2014. Later in her evidence, she testified that she spoke with Mr. Mullen in January 2015 and after the Christmas holidays.
36C.L. testified she could not see a lawyer at Ms. Clinker’s firm for two to three weeks after she contacted it. She testified in examination-in-chief, and confirmed in cross-examination that she met with her lawyer, Ms. Clinker, in January 2015.
37C.L.’s testimony was different from the Request and her witness statement, both of which stated that C.L. spoke with Mr. Mullen in January 2015 and met with Ms. Clinker in February 2015. The Tribunal invited her to explain these differences. C.L. testified that she could not remember when she received the Decision, and that it was in either November or early December. Once she received it, she contacted Mr. Mullen. She testified that she could not remember everything and it was all between November 2014 to January 2015 when she was working 13 to 15 hours a day, all days of the week. In response to questions from the applicants’ counsel, she did not admit that there were any inconsistencies between her evidence, her witness statement and the Request. She could not remember it all, she testified, as she was working 13 to 17 hours per day, every day.
38Ms. Clinker mailed some documentation to her after their meeting. C.L. testified that she never received it by mail. In examination-in-chief, C.L. testified that she went into Ms. Clinker’s law firm to pick up the paperwork. In cross-examination, she testified that she provided her address to Ms. Clinker’s law firm and agreed it was important to receive documents from it. She testified that she also provided her email address to the law firm and that she had received Ms. Clinker’s correspondence (which she did not receive by mail) by email.
39C.L. testified that the respondents are seeking reconsideration of the Decision because they had “not received notice”. She testified, in cross-examination, that she had no explanation for the delay in filing the Request between the date they met with Ms. Clinker’s law firm and the date that the Request was filed.
J.L.'s Evidence
40J.L. testified that he was the owner and cook of the restaurant. The restaurant in the first community closed at the beginning of June 2013. He also operated it in the second community and now operates it in a third community.
41J.L. confirmed that the restaurant was located at the K street address in the first community, and that he and C.L. lived above the restaurant. The address also had a post office box number, but he could not remember it. He agreed in cross-examination that they had received mail while living in the first community without the post office box number being included on it. He testified, in both examination-in-chief and cross-examination that they had not received any documentation from the Tribunal while living in the first community, although he acknowledged that the address the Tribunal used was correct.
42On July 15, 2013, the personal respondents moved from the first community to the second community. He confirmed the M street address for the restaurant and that they lived at the same address as the restaurant. J.L. testified in cross-examination that it was important for the restaurant, as a business, to receive its mail and it would be a significant problem if it did not. Their business was well known by residents in the second community and they would know the name of the restaurant. It was part of the bowling alley, which was the only one in the second community.
43The M street address was left with the purchaser of their property and he expected mail from the first community to be forwarded to it despite not including a post office box number. He confirmed, in cross-examination, that after they moved to the second community, he did not contact the post office in the first community, or the purchaser of their property to provide their post office box number in the second community.
44There was no door-to-door mail delivery in either the first community or the second one. In both locations, they received their mail directly at the post office, with a post office box number, although he could not remember the number from the first community. J.L. testified C.L. was responsible for picking up the mail in both locations. He confirmed in cross-examination, that they received mail in the second community which did not include the post office box number.
45During his cross-examination, J.L. testified that C.L. told him that she had complained about mail delivery in the second community. He agreed that this information was not included in his witness statement, agreed that it was important for a witness statement to be complete and accurate, and agreed that there was an outstanding Decision in which he, his wife, and their business were all liable for the remedies ordered. He disagreed, in cross-examination, that the information about C.L. filing a complaint with Canada Post in the second community was not included in the witness statement was because it did not happen.
46J.L. testified the only documentation from the Tribunal was the Decision received in November 2014. He could not recall the date that they received it. He thought, “but was not too sure” that he received another document from the Tribunal after receiving the Decision.
47After he reviewed the Decision, J.L. testified in examination-in-chief, he decided to contact a lawyer, Bob Mullen. He testified that he never actually spoke with Mr. Mullen, as C.L. contacted him instead. I asked him to clarify his evidence as his witness statement said “we met with Mr. Mullen” and his testimony was that he did not meet with Mr. Mullen. In response, he testified that he was not sure if he met with Mr. Mullen. It could have been by telephone, he said, but he was not too sure about it.
48Mr. Mullen referred them to Ms. Clinker’s firm. J.L. testified that he thought that this was after Christmas 2014 and was “sometime” in January. He did not take any steps himself to contact Ms. Clinker’s firm. C.L. did this. He testified that he recalled meeting Ms. Clinker in early February 2015. During his cross-examination, he would not agree that C.L.’s evidence about meeting with the lawyer in January 2015 was incorrect. He was asked if the meeting took place in January, to which he responded, “I would say more in February”.
49Following their meeting with Ms. Clinker, J.L. testified that they received advice from Ms. Clinker that they received by email. He did not recall the date that they received the email.
50After receiving the Decision, J.L. agreed he did not contact the Tribunal, did not go online to the Tribunal’s website and took no steps, apart from contacting the lawyers, to address the Decision. Part of the delay between receiving the Decision and filing the Request was obtaining a lawyer. He had no explanation, he confirmed in cross-examination, for any delay after meeting with Ms. Clinker.
51J.L. testified that they filed the Request because they had not been served properly and had never been notified by the Tribunal. He agreed that the only document that was returned from their address in the second community was in relation to correspondence issued by the Tribunal in December 2014. In cross-examination, he testified that it was returned by the post office in the second community and indicated that he had moved. He confirmed that he lived in the second community until July 2015. He noted that some of the Tribunal’s documentation sent to the second community had an incorrect postal code on it and that unlike some correspondence the Tribunal sent to the first community address by courier, it did not send anything by courier to the second community address.
The Applicants' Evidence
Anthony Smaha's Evidence
52Mr. Smaha has worked for Canada Post for 30 years and has been the local area superintendent in northwestern Ontario since February 2015. Although prior to that time he was not directly responsible for the second community, as he was the immediate officer of northern operations, he was part of a management for northern Ontario postal service. If anything extraordinary happened to mail service in the north, including mail not being delivered to a post office, the management committee would hear about it.
53During his examination-in-chief, he testified that there is only one postal code assigned to the second community. He testified that even if the postal code is not accurate, the mail would still likely be delivered to the second community. In cross-examination, he admitted that an incorrect postal code could delay the mail delivery to the second community.
54Mr. Smaha testified about how mail is delivered to the second community and how it is sorted. Mail takes approximately four days to be delivered from Toronto to the second community. It is sent to Thunder Bay, where it is sorted, and then trucked to the second community. Once it arrives in the second community, the mail is sorted and put into post office boxes because there is no home mail delivery. At the post office in the second community there are two full time employees, one part time employee, and some temporary employees. The main worker has been employed for 14 years, the assistant for 10 years and the part time employee for two years.
55If mail comes to the post office in the second community without a post office box on the address, he testified that the mail would be handled several ways. The post office employee could recognize the name of the mail recipient and put it in the post office box, or look up the number of the post office box. If the mail was not delivered by one of those methods, it would be returned to sender. This was, he admitted in cross-examination, up to the discretion of the post office employee.
56Mail remains in the post office box until it is full. At that point, no more mail will be sorted into the post office box. Instead, one of the employees will bundle up the mail and insert a notice into the box. The process, Mr. Smaha testified, is to hold onto the mail for 15 days before returning it to sender. If there is local knowledge about why the mail is not being picked up from the post office box, such as vacation, then it could be held longer.
57Mr. Smaha testified about the complaints process at Canada Post, which include making a complaint directly to an employee in a post office or by calling a 1.800 number. Complaints made to the 1.800 number or to management are forwarded to him. He testified that he is not aware of any complaints about mail delivery to the second community, or local issues with residents not receiving their mail. If mail was not delivered to the second community for weeks or a month, then it would come to his attention. If mail was delivered late by a day to the second community, this would also come to his attention because network transportation was not meeting their delivery schedule times.
C.C.'s Evidence
58C.C. testified that going through the merits hearing was very difficult and stressful for her and she felt some relief when she received the Decision. She testified that when she received the Request, she was really upset, devastated, had difficulty coping and required additional medication. If the Request is granted, it would have a negative impact on her physical and emotional wellbeing and that her medical condition would worsen by the additional stress and would make her sick. She still lives in fear of the personal respondents and going through another merits hearing would heighten that feeling for her. She confirmed, during cross-examination, that she had not produced any medical documentation in support of these medical claims.
59C.C. testified that she would be prejudiced if the Request was granted. One of her witnesses has moved out of the country, and another is potentially moving out of the country as well. In cross-examination she agreed that most of the witnesses were her family members and that the witness who had moved out of the country was a close friend. He had retired and sometimes worked out of the country. In cross-examination, she testified that if the Request was granted she would need to give him two to three months’ notice of the hearing to arrange for his evidence.
60In addition to at least one of her witnesses moving out of the country, C.C. testified that she has concerns about her witnesses’ ability to remember the incidents in question. She also expressed concern about the personal respondents’ ability to recollect the incident as they could not remember everything during the hearing pertaining to their Request.
61C.C. testified that she lives in a small community outside of the first community. She receives mail even if the address or the postal code is incorrect.
J.C.'s Evidence
62J.C. testified that at the merits hearing, it was very difficult to hear her mother’s evidence, and the impact of the respondents’ conduct on her mother, and it was very difficult to testify about her own situation and her medical conditions. She testified that she worked very hard to not look backwards once the hearing was over, but, rather, forwards and testified that her medical conditions could flare if the Request was granted. During her cross-examination, she confirmed that she had not produced any medical documentation in support of this position.
63She was terrified when she received the Request. Her heart pounded and she shook and thought she wanted to go forwards not backwards. She does not want to undo the progress that she has made in her life since the Decision was issued. She has not received the remedies that were ordered in the Decision.
64J.C. testified that she is also concerned about the accuracy of details of everyone who would testify about what happened in 2013, and whether it would be fair for people to recall that far back. In cross-examination, she admitted that she has not forgotten the incidents that led to her Application being filed against the respondents.
Law
The Code
65Sections 42(1) and (2), 43(1), (2) 1. and 2., (3)(c), and 45.7 of the Code are relevant to the issues in this Request. They provide:
42(1) The provisions of the Statutory Powers Procedure Act apply to a proceeding before the Tribunal unless they conflict with a provision of this Act, the regulations or the Tribunal’s rules.
(2) Despite section 32 of the Statutory Powers Procedure Act, this Act, the regulations and the Tribunal rules prevail over the provisions of that Act with which they conflict.
43(1) The Tribunal may make rules governing the practice and procedure before it.
(2) The rules shall ensure that the following requirements are met with respect to any proceeding before the Tribunal:
An application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules.
An application may not be finally disposed of without written reasons.
(3) Without limiting the generality of subsection (1), the Tribunal rules may,
(c) authorize the Tribunal to conduct examinations in chief or cross-examination of a witness;
45.7(1) Any proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.
(2) Upon request and under subsection (1) or its own motion, the Tribunal may reconsider its decision in accordance with its rules.
The Tribunal's Rules of Procedure
66Rules 5.5, 26.5, and 26.5.1 are also applicable to the Request. They provide:
5.5 Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:
a) deem the Respondent to have accepted all of the allegations in the Application;
b) proceed to deal with the Application without further notice to the Respondent;
c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;
d) decide the matter based only on the material before the Tribunal.
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 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.
26.5.1 A Request for Reconsideration made more than 30 days following the Decision will not be granted unless the Tribunal determines that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
Practice Direction on Reconsideration
67The Tribunal’s Practice Direction on Reconsideration sets out the following:
The Human Rights Tribunal of Ontario (HRTO) has developed the following approach to requests for reconsideration. The procedure outlined below provides general information only. It is not a rule within the meaning of the HRTO's Rules of Procedure. The HRTO may vary the approach to reconsideration where appropriate.
General
Parties may ask the HRTO to reconsider a final decision. The HRTO may also reconsider a decision on its own initiative where it considers it appropriate.
Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.
The rules for reconsideration are found in Rule 26 of the Rules of Procedure. A request for reconsideration will only be granted if the request meets one of the requirements in Rule 26.5.
Examples of situations where the HRTO has refused a request for reconsideration are where:
the request asks for review of an interim decision which does not finally decide the party's rights or interests;
the request repeats arguments the party has made at the hearing or in written submissions;
a party disagrees with and wishes to challenge a finding of fact, including findings made about the credibility of witnesses;
a party wishes to raise new arguments that were not made, but could have been made at the hearing or in written submissions;
a party received notice that an application could be dismissed as abandoned if steps were not taken, but did not follow the Tribunal's directions by the deadline.
Examples of situations where the HRTO has reconsidered its decision are:
where a party, through no fault of its own, did not receive notice of a hearing or request for submissions; or
where exceptional factors exist that outweigh the public interest in the finality of decisions including inconsistencies in the HRTO's case law.
Procedure
The party seeking reconsideration of a final decision must make a Request for Reconsideration using Form 20, deliver it to all parties and file it with the HRTO. The Request must include: reasons for the request, the basis upon which the HRTO is asked to grant the request; submissions in support of the request; and the remedy or relief sought (Rule 26.3).
A Request for Reconsideration made more than 30 days after the date of the decision will not be granted unless the HRTO determines that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay (Rule 26.5.1). A Request for Reconsideration filed more than 30 days after the date of the decision must include all information in support of the request that the reconsideration be accepted late. The HRTO does not grant extensions in advance to file Requests for Reconsideration.
The other parties do not need to respond to the Request unless the HRTO sends a letter or case assessment direction directing them to do so.
Issues
68There are two issues for the Tribunal to consider. The first addresses Rule 26.5(b) and the second addresses Rule 26.5.1. They are:
Did the respondents not receive the notice of hearing, through no fault of their own? and
Is the Request untimely? If so, is there a good faith explanation for the delay?
Did the Respondents Not Receive Notice of Hearing, Through No Fault of Their Own?
69It is an important principle of natural justice and procedural fairness that a party know and be given an opportunity to respond to allegations against them, and be given notice of the hearing. In proceedings before the Tribunal, these principles are codified in the Code, the Rules, and the Statutory Powers Procedures Act. The combined effect of these gives a respondent the right to know the allegations against them and the right to participate in the proceedings. This is demonstrated by the Tribunal sending an application to a respondent, and giving the respondent the opportunity to respond to the allegations by filing a response. If the Tribunal does not dismiss an application following a summary or preliminary hearing, then it schedules a hearing on the merits, by issuing a notice of hearing to the parties setting out the date, time and location of the hearing. Where a respondent has not filed a response after receiving an application, Rule 5.5 of the Rules permits the Tribunal to deem the respondent to have accepted all allegations in the application, proceed to deal with the application without further notice to the respondent, and deem the respondent to have waived all rights with respect to further notice or participation in the proceeding.
70The Tribunal has held in a number of cases that when a document is sent by regular mail to the address provided by a party, and the document is not returned to the Tribunal as being undeliverable, there is a presumption that the document has been successfully delivered to the party. See Gothard v. Gallagher, 2011 HRTO 1776 at para. 11.
71Despite the respondents’ submission that the applicants have not presented any evidence to establish that the Tribunal’s documentation was received by the respondents, the Tribunal has held that it is the respondents’ onus to prove, on a balance of probabilities, that they did not get the Tribunal’s correspondence, through no fault of their own. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at para. 46.
72The Tribunal has also held that a respondent’s assertion that he or she did not receive the Tribunal’s correspondence, such as the hearing notice, should be accepted at face value unless there is reason to question the assertion of the party. See Rose v. Mackenzie Health, 2015 HRTO 1029 at para. 14. Divisional Court accepted this principle when it allowed the application for judicial review in Harvey v. Evan’s Bus Lines, unreported endorsement dated June 9, 2015 (“Evan’s”), and quashed the Tribunal’s decision dismissing the application as abandoned in 2014 HRTO 1647 and the subsequent reconsideration decision 2014 HRTO 1726. The Divisional Court ruled, “It is clear that [the applicant] did not receive notice and there is no evidence of any fault on her part. The applicant moved promptly once she learned of the dismissal [of her application].” The Divisional Court ordered a new hearing and directed the Tribunal to give notice by regular mail and email.
Summary of Tribunal's Communications with the Respondents Between June 2013 and November 2014
73It may be helpful before going further in the analysis to set out exactly what the Tribunal sent the respondents, where and when it was sent and what the respondents say they received. This not includes all the correspondence that was returned to the Tribunal as being undeliverable (which is set out in para. 10 above).
Notices of Application dated June 18, 2013 and copies of the Applications were sent by regular mail to each respondent at the K street address in the first community. Not one was returned to the Tribunal as undeliverable. The Tribunal did not include a post office box number on the address. The respondents say they did not receive any of them. The respondents’ own evidence confirms they continued to reside at the K street address in the first community at the time these Notices were sent to them, and that the address, apart from the missing post office box, was complete. They agreed that they received mail at this address without a post office box included.
The August 2013 Interim Decision was sent by regular mail and courier to the respondents at the K street address in the first community on August 21, 2013. It was returned to the Tribunal as undeliverable. The respondents say they did not receive it. However they confirmed in their oral testimony they provided the M street address in the second community address to both the post office in the first community and the purchaser of their K street property; this address did not include a post office box number and they expected to receive forwarded mail at that address. They agreed they did not contact either the purchaser or the post office in the first community, after their move to the second community, to provide then with the post office box number for their second community address. They agreed that they received mail at this address without a post office box included.
A Registrar’s letter, dated September 13, 2013, including the Applications, the Notices of Application and the August Interim Decision, was sent by regular mail to the respondents at the M street address in the second community. The address did not include the post office box number. It was not returned to the Tribunal as undeliverable. The respondents say they did not receive it.
The October 2013 Interim Decision and covering letter was sent by regular mail to each of the respondents at the M street address in the second community on October 13, 2013. The address did not include the post office box number. Not one was returned as undeliverable. The respondents say they did not receive any of them.
An October 16, 2013 Notice of Case Management Conference Call was sent to the respondents by regular mail at the M street address in the second community. The address did not include the post office box number. It was not returned as undeliverable. The respondents say they did not receive it.
An April 1, 2014 Case Assessment Direction confirming the date and location of the hearing was sent to each respondent at M street address in the second community by regular mail. The address did not include the post office box number. Not one was returned as undeliverable. The respondents say they did not receive any of them.
The November 2014 Decision was sent to each respondent at the M street address in the second community by regular mail. The address did not include the post office box number. It was not returned to the Tribunal as undeliverable. The respondents agree they received the Decision but are unclear precisely when they received it – either November or December.
74In light of this background, there is reason to question the respondents’ assertions that they only received the Decision from the Tribunal. The Tribunal did not issue just one piece of correspondence sent collectively to the respondents; instead, before the April 2014 hearing, it issued 11 pieces of correspondence, three of which were sent separately to each respondent, and sent correspondence to two different addresses. J.L.’s testimony concerning an incorrect postal code on a December 23, 2014 mailing is irrelevant. First of all, the Tribunal used two different postal codes on correspondence that it sent to the respondents separately at the second community. Even if I accept that error occurred, it occurred well after the material time period- between the issuing of the Notice of Application and the November 2014 decision. In fact, this was the only correspondence issued by the Tribunal that was returned to it while the personal respondents lived in the second community.
75Based upon the respondents’ failure to provide the post office box number of their second community address to the first community’s post office and the purchaser of their property following their move to the second community, along with their admissions that they received mail at the second community address without the post office box number on it, I do not accept their position that the Tribunal did not send the correspondence to the correct address in the second community or that they did not receive the Tribunal’s correspondence through no fault of their own.
76Apart from the oral evidence of the personal respondents, they presented no evidence in support of their position that they experienced problems receiving mail in the second community. They did not present copies of bills from the local hydro company or the telephone company, showing that their address in the second community did not include a post office box number, or that their bills were switched, upon C.L.’s request, from mail to electronic delivery. They did not present a copy of the envelope or correspondence their counsel attempted to send them in February 2015 (with the privileged information redacted). They did not present any documentation that C.L. raised concerns about the delivery of their mail in the second community with the local hydro company, the telephone company, and/or the post office. C.L.’s daughter, who also allegedly made complaints about the mail delivery, did not testify.
77Furthermore, and perhaps more importantly, the evidence of the personal respondents gives reason to question their assertions that they did not receive the Tribunal’s communications and raises concerns about their credibility.
78In making findings of credibility, I have applied the well-established principles stated by Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), which is often cited by the Tribunal in cases in which credibility is assessed. It stated:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
79Further, the Tribunal has set out a number of factors that have been considered in assessing credibility in witnesses. This includes: the internal consistency or inconsistency of evidence; the witness’ ability and/or capacity to apprehend and recollect; the witness’ opportunity and/or inclination to tailor evidence; the witness’ opportunity and/or inclination to embellish evidence; the existence of corroborative and/or confirmatory evidence; the motives of the witnesses and/or their relationship with the parties; and the failure to call or produce material evidence. See Shaw v. George Brown College, 2009 HRTO 920 at paras. 12-14, Staniforth v. C.J. Liquid Waste Haulage Ltd., 2009 HRTO 717 at paras. 35-36, and McKay v. Toronto Police Services Board, 2011 HRTO 499 at para. 11.
80Evaluating the veracity of a witness’ evidence is a multi-faceted exercise, where a conclusion of credibility develops from various interrelated findings, such as whether, on a balance of probabilities, the evidence was sufficiently probable, logically connected to other points, and/or buttressed by independent evidence; as well as findings with respect to the state of the witness, such as candour or evasiveness, capacity to perceive and remember, and attitude towards the parties. Further, a finding of lack of credibility with respect to one aspect of a witness’ testimony does not automatically render the entirety of the witness’ evidence as non-credible. See Shah, above, at para. 22.
81In assessing the evidence of C.L. and J.L., and considering the principles about credibility as set out above, I do not find them to be credible witnesses.
82There are inconsistencies between their testimony, their witness statements and the Request. The inconsistencies were not addressed, acknowledged or explained during their examination-in-chief or in the respondents’ final submissions. In fact, during final submissions, the respondents submitted that the time frame set out in the Request and the witness statements was accurate, but did not provide an explanation as to why C.L. testified about different time frames, including her evidence in re-examination that her contacts with the lawyers occurred from November 2014 to January 2015 when her witness statement and the Request gave a time frame beyond January 2015.
83With respect to the inconsistencies in C.L.’s evidence, there are a number of them. For example, she testified that she initially contacted Mr. Mullen in November 2014, and later said that it was before Christmas 2014. Both of these dates were different from the late December 2014 date set out in the Request and her witness statement. The date that C.L. testified about meeting Ms. Clinker, in January 2015, was different from the February 2015 date set out in the Request and her witness statement. In re-examination she testified she could not remember the dates and that they occurred sometime between November 2014 and January 2015.
84Further, C.L. testified that her daughter came to live with them in April 2014. Her witness statement identifies this date as May 30, 2014. The number of times that the mail was picked up also differed between C.L.’s evidence and her witness statement. She testified that she picked up the mail in the second community once or twice a week, yet her witness statement said that she picked up the mail in the second community once a week or once every two weeks. Her witness statement said that she did not receive any correspondence from the Centre, however, she testified that she received correspondence from the Centre in November and gave it to Mr. Mullen, along with the Decision, to review.
85J.L.’s testimony was also inconsistent with the Request and his witness statement. The Request and his witness statement indicate he met with Mr. Mullen. Yet he testified that he did not meet with Mr. Mullen but might have spoken with Mr. Mullen by telephone. He too confirmed that the respondents received correspondence from the Centre in November 2014, although this is denied in his witness statement.
86There were internal inconsistencies within C.L.’s evidence. Throughout her evidence, the date upon which the respondents received the Decision, the date she contacted Mr. Mullen and the date the respondents met with Ms. Clinker shifted, with C.L. testifying about different dates and time frames between her examination-in-chief, her cross-examination, responses to questions from the Tribunal, and in her re-examination.
87Initially, C.L. testified that the respondents received the Decision in early November 2014. Later, she testified that it was late in November 2014 and still later she testified that it was early December. She initially testified that she contacted Mr. Mullen in early November 2014, but he was on vacation. In response to a question from the Tribunal, she confirmed that she spoke with Mr. Mullen before Christmas 2014. Later in her evidence, she testified that she spoke with him in December, and later still she testified it was after Christmas and in January 2015.
88C.L.’s evidence about when she met with Ms. Clinker also equivocal. She testified during examination-in-chief and cross-examination that she met with Ms. Clinker in January 2015. When it was pointed out to her that the Request and her witness statement contained different dates from her oral evidence about when she received the Decision, contacted Mr. Mullen, spoke with Mr. Mullen and met with Ms. Clinker, she did not agree that these were inconsistencies. She testified that she was working 13 to 15 hours a day, seven days a week, and later testified that she was working 13 to 17 hours per day, every day from November to January and she could not remember everything. All she could remember was that it was sometime between November 2014 and January 2015. In a case where credibility is critical and the timing of the Request is crucial, C.L.’s inconsistent evidence about the timing of these events undermines her credibility.
89As a personal respondent, J.L. had the opportunity of sitting in while C.L. was testifying and hearing her evidence. In my view, he attempted to tailor his evidence to address the deficiencies in C.L.’s evidence and to be consistent with the information contained in their witness statements and the Request. This included his testimony that they met with Ms. Clinker in February 2015, despite C.L. testifying in both examination-in-chief and cross-examination that they met in January 2015. When the inconsistencies between C.L.’s evidence and the information in her witness statement and Request were pointed out to him in cross-examination, he would not agree that her oral evidence was wrong or even inconsistent with the witness statement or Request.
90Further, in coming to the conclusion that the personal respondents were not credible, I find that C.L., who was the one responsible for picking up the mail in both communities, embellished her evidence. During her cross-examination, new information about C.L., and her daughter, complaining to the second community’s post office about problems with their mail delivery was presented. This information, which was helpful to the respondents’ position, was not included in the Request or the witness statement. As noted above, there was no independent evidence, documentary or in the form of C.L.’s daughter testifying, in support of this new evidence.
91There was also new information, not mentioned in the Request or C.L.’s witness statement, presented during C.L.’s examination-in-chief. This included C.L.’s evidence that the respondents did not receive mail from the local hydro company and the telephone company, and her efforts to resolve not receiving mail from these companies by receiving the bills on-line. I find that this new information was also an attempt by C.L. to embellish the respondents’ position and, in the absence of an explanation about why this was not provided in the Request or her witness statement, undermines her credibility.
92Further, I find that the respondents were misleading and deceptive when they claimed in their examinations-in-chief, their witness statements, and the Request that they had not received their counsel’s February 2015 correspondence until February 23, 2015.
93Paras. 8 and 9 of the Request state:
Correspondence was forwarded to the [personal respondents] via mail on February 4, 2015 advising them of the procedure for appealing the decision and the time lines associated with same. The letter sought instructions on how they wanted to proceed.
After not hearing from the [personal respondents], Ms. Clinker followed up with the [personal respondents] on February 20, 2015. They had not received her correspondence. The [personal respondents] picked up a copy of the correspondence on February 23, 2015 from the office of Petrone Hornak Garofalo Mauro to ensure that it was received.
94Para. 14 of both C.L. and J.L.’s witness statements states:
Our lawyer sent us correspondence on February 4, 2015 seeking instructions on whether we wanted to proceed with this matter but we did not receive same in the mail. It was not until February 23, 2015 that I received a copy of the letter when I picked it up from my lawyer’s office. I then immediately gave her instructions to proceed with the request for reconsideration.
95As noted above, C.L.’s evidence was inconsistent about when the meeting with Ms. Clinker took place, but both respondents were consistent in their evidence that they never received their counsel’s letter by mail. However, during the cross-examination of both personal respondents, they both confirmed that they had an email address, that they provided that email address to their counsel, and that they received her correspondence by email, although they could not recall the date that it was received.
96The information about not receiving their counsel’s mail was, it seems to me, tendered to support their position that they had problems with their mail in the second community, and provide an explanation for their delay in filing their Request. However, I cannot accept this assertion at face value. Further, I find that the deliberate choice of wording in the Request and the witness statements, with the emphasis on not receiving counsel’s correspondence by mail, to be misleading given the personal respondents’ evidence that they received their counsel’s correspondence by email, a point that was not addressed in the Request, their witness statements, or during their examinations-in-chief.
97Both personal respondents flatly denied receiving any correspondence from the Tribunal while they lived in the first community and any correspondence from the Tribunal while they lived in the second community that was issued prior to the April 2014 hearing. The only documentation that they acknowledge receiving from the Tribunal is the Decision. As noted above, both C.L. and J.L. also testified, contrary to their witness statements, that they received a copy of the Centre’s November 2014 correspondence.
98Self-interest in the outcome of a hearing is a factor upon the Tribunal considers when determining credibility. See Shah, above, at para. 79. In light of the remedies ordered by the Tribunal in the Decision, there is a significant self-interest for the personal respondents to claim that they did not receive any Tribunal communications before they received the Decision, such that their Request can be granted.
99I cannot accept the personal respondents’ assertions that they did not receive any of the Tribunal’s communications, apart from the Decision.
100Apart from the oral evidence of the personal respondents, there is no independent evidence that supports their position that they had problems receiving their mail in the first or second community. Without supporting evidence, it is completely self-serving to say that they did not receive the Notices of Application and Applications, or 11 pieces of correspondence that were issued by the Tribunal to two addresses in two different communities before the April 2014 hearing, did not participate in the proceedings, and did not have knowledge of the hearing. It is quite improbable that 11 pieces of correspondence, sent to three different respondents, which were not returned to the Tribunal, were not received. It is improbable that the only correspondence the respondents received from the Tribunal was the Decision, in which they were found to be jointly and severally liable to pay $25,000 to the applicants, but no other Tribunal correspondence including the first Reconsideration Decision. It is the respondents’ burden to prove that they did not receive the correspondence and they have failed to meet their onus.
101It was self-serving for the personal respondents to not admit or agree that some of the oral evidence presented was inconsistent with the Request and the witness statements. It was self-serving for J.L. to not admit that some of C.L.’s evidence was inconsistent with the Request or her witness statement. It was self-serving for C.L. to not admit that her evidence about the time lines was inconsistent with the Request and her witness statement.
102In its totality, I find that the personal respondents are not credible witnesses. As such, their claim that they did not receive any of the Tribunal’s correspondence issued to them while they lived in the first community or the second community is not credible. Accordingly, I cannot accept their submissions that through no fault of their own, they did not receive notice of the Tribunal’s proceedings.
103The Request is denied on this basis.
Is the Request Untimely and if so is there a Good Faith Explanation for the Delay?
104Given that the Request is denied because I have found the personal respondents not to be credible in their assertion that they did not receive notice and therefore were unable to participate in the proceeding, I do not need to address the timeliness of their Request. Notwithstanding this, I have also considered the issue of the timeliness of the respondents’ Request.
105According to Rule 26.5.1 of the Rules, a Request for Reconsideration must be made within 30 days following the final decision. For a request to be granted after 30 days, the Tribunal must determine that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
106The Tribunal has dismissed requests for reconsideration where a party has not provided a good faith explanation for the delay in filing the request. See, for example, Fry v. Running Room Canada, 2012 HRTO 149 at para. 13, der von Felix v. International Financial Data Services (Canada), 2010 HRTO 362 at para. 4.
107As set out in para. 72, above, the Divisional Court in setting aside the Tribunal’s Decision and Reconsideration Decision in Evan’s, above, noted that the applicant in that case had moved promptly to file her request for reconsideration after she realized that her application had been dismissed. In this case, the personal respondents did not move promptly to file their Request. The Decision was issued on November 4, 2014. The respondents had until December 4, 2014 to file their Request. Instead, the Request was filed on March 9, 2015, some 3 months after the deadline by which the Request was to have been filed.
108While the personal respondents’ evidence was inconsistent about when they received the Decision, ranging from early to late November and then to early December, they both testified that they did not contact the Tribunal, review its website, or read its Practice Directions about Reconsiderations. The Tribunal has found that ignorance of the time limits does not constitute a good faith explanation for delay in section 34 of the Code decisions and has applied those principles in reconsideration decisions. See, for example, Thompson v. PUC Distribution Inc., 2015 HRTO 1191 at para. 6, Rosario v. FORM Architecture Engineering, 2014 HRTO 1466 at para. 15, and Christianson v. Office of the Independent Police Review Director, 2015 HRTO 1474 at para. 7 and 13.
109There is delay that was occasioned by the personal respondents attempting to get legal advice, first from Mr. Mullen and then from Ms. Clinker’s firm, and delay in that both lawyers were unavailable for some of the period before the Request was filed. The delay is not due to the lawyers themselves, but the personal respondents’ attempts to obtain legal advice.
110In Higgins v. Community Living Mississauga, 2010 HRTO 1707, a case referred to by the respondents, the Tribunal granted an applicant’s reconsideration request because the delay was attributed to her obtaining legal counsel. The request was filed less than one month after the 30 day deadline and one day after the applicant met with her counsel. Higgins, above, was filed under transitional sections of the Code during the period that outstanding complaints filed with the Ontario Human Rights Commission could be addressed by the Tribunal after the legislated changes to the Code in 2008 came into effect. Rule 10.1 of the Tribunal’s Rules of Procedure for Transitional Applications specifically stated that decision issued in respect of section 53(3) of the Code were to be determined based on the facts and applicable law, but shall not be considered to have precedential value.
111Even if Higgins had precedential value, it is distinguishable on its facts. In this case, C.L. contacted Mr. Mullen either in November or December 2014, and, because he was on vacation, there was a delay waiting to hear from him. When the personal respondents did hear from him, in late November, December before Christmas, or in January 2015, as C.L. testified, he referred them to Ms. Clinker’s firm. There was a further delay from the time that the personal respondents contacted Ms. Clinker’s firm, ranging from December 2014 to January 2015, to the time that they met with Ms. Clinker, ranging from January to February 2015, and then another delay until March 9, 2015 when the Request was filed.
112The Tribunal has found that attempts to find a lawyer, along with other factors, is not a good faith explanation for delay under section 34(2) of the Code. See, for example, Moro v. Thames Valley District School Board, 2012 HRTO 436 at paras. 21 to 22, and Colhoun v. Hydro One Networks Zone 2, 2013 HRTO 312 at para. 11.
113Unlike in Patterson v. Mississauga (City), 2012 HRTO 598 at para. 26 and Caron v. Lakeside Plastics Limited, 2014 HRTO 958 at para. 12, where the Tribunal found that the applicant’s reliance upon incorrect legal advice was found to be a good faith explanation for a section 34(2) of the Code delay, there is no evidence from the personal respondents in the case before me that the legal advice that they received, correct or incorrect, explains the delay in filing their Request or constitutes a good faith explanation for the delay in filing their Request. Both personal respondents confirmed in their cross-examinations that there was no explanation for the delay after meeting with Ms. Clinker (in either January or February 2015) and filing the Request in March 2015.
114It is of great concern to me that the personal respondents assert that they have problems receiving mail at the second community address, provide that address to their counsel, claim not to receive her correspondence by mail (yet receive it by email), and then use the alleged failure to receive her correspondence as part of their good faith explanation about the delay in filing their Request. Both C.L. and J.L. testified that they also provided Ms. Clinker with an email address and received her communication by email. As I noted above, I find that this claim to be misleading and deceptive. Accordingly, I cannot accept that any delay from the time that they met with Ms. Clinker to the time that they filed their Request, in light of this tactic, to constitute good faith.
115In these circumstances, in addition to finding that the personal respondents are not credible in their assertions that they did not receive, through no fault of their own, notice of the Tribunal’s proceedings, I also find that the Request is untimely and there is no good faith explanation for the delay.
116In light of this finding, I do not need to address the applicants’ position that they would be prejudiced if the Request were granted.
117For these reasons, the respondents’ Request is denied.
Dated at Toronto, this 26th day of July, 2016.
“signed by”
Alison Renton
Vice-chair