J.G. by their Litigation Guardian M.J. v. Nickel City Hockey Association, 2017 HRTO 1368

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.G. by their Litigation Guardian M.J.

Applicant

-and-

Nickel City Hockey Association and Guy Myre

Respondents

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott

Date: October 17, 2017

Citation: 2017 HRTO 1368

Indexed as: J.G. by their Litigation Guardian M.J. v. Nickel City Hockey Association

WRITTEN SUBMISSIONS

J.G. by their Litigation Guardian M.J., Applicant

Joseph R. LeBouthillier, Representative

1On June 28, 2017, the Tribunal issued a Notice of Intent to Dismiss the Application (“NOID”) on the basis that it appeared to be outside of the Tribunal’s power to decide (the “Decision”). The applicant was given until July 28, 2017 to respond to the NOID. The applicant did not respond.

2By decision dated August 14, 2017 (2017 HRTO 1043), the Tribunal dismissed this Application as abandoned because the applicant failed to respond to the NOID.

3On August 23, 2017, the applicant filed a Request for Reconsideration of the Decision. The applicant’s representative asserted that he did not receive the NOID and that his client had not abandoned the Application.

4By Case Assessment Direction dated September 11, 2017, the Tribunal directed the applicant to provide a further explanation as to how or why he did not receive the NOID when it was both emailed and mailed to his legal representative. The NOID that was sent by regular mail was not returned to the Tribunal as undeliverable. The applicant was directed to provide a further explanation by September 19, 2017 and the respondents were given until October 3, 2017 to respond.

5On September 14, 2017, the applicant’s legal representative provided submissions in response to the direction given in the Case Assessment Direction. He could provide no explanation as to why he did not receive the NOID. He advised that he contacted the Tribunal on August 8 and August 15 to get a status update on the file and left messages for the case processing officer to return his call. On August 23, 2017, he spoke to the case processing officer who advised him on how to complete the Request for Reconsideration. He advised further that he had experienced difficulty obtaining emails from the Tribunal in the past on a different file.

6The respondent did not provide submissions on the Request for Reconsideration.

Analysis and Decision

7Rule 26.1 of the Tribunal’s Rules of Procedure provides that “any party may request reconsideration of a final decision of the Tribunal within 30 days from the date of the decision”.

8The circumstances in which Reconsideration may be granted are set out in Rule 26.5:

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 issue in this case is whether the applicant did not obtain notice of the NOID pursuant to Rule 26.5(b).

10The applicant’s legal representative is unable to explain how he did not receive the NOID. He contacted the Tribunal on August 8 and 15 to obtain a status update on the file, but was unable to speak to anyone. He states the first time he was able to reach someone was on August 23, 2017 when he was given assistance by the case processing officer in completing this Request for Reconsideration.

11While I do not have an explanation from the applicant’s representative as to why he did not receive the NOID, I accept that he did not. It is clear that the applicant has not abandoned the Application given his contact with the Tribunal prior to the Decision dismissing the Application. For these reasons, I will allow the Request for Reconsideration.

Order

12The Request for Reconsideration is allowed.

13The applicant must respond to the NOID by October 27, 2017.