Kayla Logan-Maiato v. Western University, 2017 HRTO 1570

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kayla Logan-Maiato Applicant

-and-

Western University Respondent

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw

Date: November 28, 2017

Citation: 2017 HRTO 1570

Indexed as: Logan-Maiato v. Western University

WRITTEN SUBMISSIONS

Kayla Logan-Maiato, Applicant

Self-represented

Introduction

1On September 20, 2017, the Tribunal issued its Decision in this Application, 2017 HRTO 1233, dismissing it as abandoned. The applicant asks that the Tribunal reconsider its Decision.

THE REQUEST FOR RECONSIDERATION

2The Request for Reconsideration (“Request”) provides the following reasons why the Tribunal should reconsider its Decision:

a. There are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier;

b. The applicant was entitled to notice but, through no fault of her own, did not receive notice of the proceeding or a hearing;

c. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; and

d. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.

THE LAW

3Under 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.

4The 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, last amended April 2014). Most relevant to this Decision is Rule 26 which states:

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.

5The Tribunal’s Practice Direction on Reconsideration includes the following statements:

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.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

background

7By Notice of Hearing dated May 8, 2017, this Application was set for a hearing on October 2 and 3, 2017.

8On June 21, 2017, the applicant filed a Form 10 Request for an Order During Proceedings asking for an extension of time to disclose her documents and witness statements and for an order adjourning the hearing to a later date. The applicant gave as reason for the requests that she was out of the country without access to cellular or wireless service. She also stated she did not have access to health care and was not able to be properly medicated for her mental health conditions, which was impeding her ability to provide disclosure because she could not concentrate or calm her nerves. She further submitted that the documents she needed were at her grandmother’s house in Ontario and because she was driving across the country, she did not have access to them. She submitted she required an adjournment of the hearing because the respondent had not provided its disclosure.

9In response, the Tribunal issued an Interim Decision, dated August 16, 2017, 2017 HRTO 1067 (“August 2017 ID”) in which the applicant and the respondent were advised to comply with Rule 16.1 by August 23, 2017, and to deliver and file their documents and witness statements in accordance with Rules 16.2, 16.3 and 17 by September 5, 2017. The applicant did not file anything further. She also did not file a Form 10 Request for an Order During Proceedings requesting any further documents from the respondent although the August 2017 ID advised her she could do so.

10In the August 2017 ID, the Tribunal also denied the applicant’s request for an adjournment of the hearing dates. The Tribunal stated that the applicant did not provide any medical documentation to indicate that she was medically incapable of proceeding with the hearing and there was no basis upon which to adjourn it.

11On August 23, 2017, the applicant filed another Form 10 Request for an Order During Proceedings in which she renewed her request for an extension of time to file documents as well as for an adjournment of the hearing. The applicant advised again that she was not physically or mentally capable of providing documents or attending a hearing in October. She stated she had a medical note from a nurse stating she was not treated that morning (emphasis added), but that she had no doctor and a walk-in clinic or emergency room would not provide her with a medical to support her reasons for her request.

12The Tribunal issued another Interim Decision, 2017 HRTO 1186, on September 12, 2017 (“September 12, 2017 ID”), in response to the applicant’s second request for an extension of time and an adjournment of the hearing dates. The Tribunal reiterated that the applicant still had not provided any information that would constitute extraordinary circumstances that warranted an adjournment of the hearing dates, and the adjournment request was denied.

13The September 2017 ID stated:

The hearing was scheduled by Notice of Hearing sent to the parties on May 8, 2017, approximately six months before the scheduled hearing dates. The applicant was granted an extension of time to provide her arguably relevant documents under Rule 16.1.

The parties also were granted an extension of time to deliver and file the documents on which they intend to rely under Rules 16.2 and 16.3, and to file their witness statements under Rule 17, until Tuesday, September 5, 2017. While there was no reason to amend this deadline, the deadline has now passed, and the new deadline is set out in the next paragraph.

The parties should be aware there are consequences for not complying with the deadline for document and witness statement disclosure as follows:

If the applicant has not complied with these directions by September 18, 2017, or communicated with the Tribunal at all, the Application may be dismissed as abandoned.

If the respondent does not provide the above-noted materials by September 18, 2017, the Tribunal may take any or all of the steps set out in Rule 5 of the Tribunal’s Rules of Procedure, including not permitting the respondents to call any witnesses or present any documentary evidence at the hearing.

14The applicant failed to respond to the September 12, 2017 ID and did not file any documents or witness statements and did not contact the Tribunal. As such, the Tribunal issued its Decision that is the subject of this reconsideration request, 2017 HRTO 1233, on September 20, 2017.

ANALYSIS AND CONCLUSIONS

15I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

16As indicated above, the applicant relies on Rule 26.5(a) to (d). She submits that:

a. She provided extensive documentation about a month after she filed her Application;

b. In June 2017 she e-mailed the respondent’s lawyer and indicated she did not think she had to disclose any documents to the respondent;

c. The respondent did not comply with Rules 16 and 17 of the Tribunal’s Rules of Procedure respecting disclosure of documentation;

d. She did not receive the Tribunal’s Interim Order, 2017 HRTO 1186, dated September 12, 2017;

e. She could not disclose her witness statement because her witness had mental health issues;

f. She could not provide the Tribunal with a doctor's note or any medical documentation to support her June 21, 2017 and August 23, 2017 Requests For an Order during Proceedings because she lost both her psychiatrist and family doctor in 2015 and has been attending walk-in clinics and emergency rooms since returning to Canada (she does not specify when she returned), though she also submits she last saw Dr. S. in January 2017; and

g. She contacted three individuals at the respondent health services, but did not get any medical information.

17With respect to Rule 26.5(a), the applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not have been obtained earlier. The Tribunal twice considered the applicant’s reasons for requesting an adjournment and an extension of time and twice found that the applicant had not satisfied it that there were exceptional circumstances that would warrant an adjournment of the hearing dates.

18Although the applicant states she did not get the September 12, 2017 ID, in which she was advised that if she had not complied with the directions to deliver and file her hearing documents and witness statements by September 18, 2017, or communicated with the Tribunal at all, the Application may be dismissed as abandoned, there is nothing before me suggesting any reason that the applicant would not have received it.

19The applicant at no other time alleged she did not receive the Tribunal’s correspondence and specifically admits she received, among other correspondence, the Tribunal’s August 2017 ID that was delivered to her in the same manner as the September 12, 2017 ID, by both e-mail and mail. Despite admitting that she received the August 2017 ID, the applicant failed to disclose her documents, and the reasons for not doing so do not accord with the reasons she originally gave in her request for an extension of time. After reviewing the applicant’s submissions and the history of this Application, I am not convinced that the applicant did not receive the Tribunal’s September 12, 2017 ID.

20The applicant also relies on Rule 26.5(c) but provides no details with respect to why she submits that my finding in the Decision is in conflict with established jurisprudence, nor does she address how the proposed reconsideration involves a matter of general or public importance.

21The applicant also relies on Rule 26.5(d), namely that other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions, but provides no details.

22In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.