Court File and Parties
CITATION: Zu v. The Corporation of the City of Hamilton, 2021 ONSC 8278
DIVISIONAL COURT FILE NO.: 21-260
DATE: 2021/12/15
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Lederer, Matheson and Sheard JJ.
BETWEEN:
JENNIFER ZU Appellant
– and –
THE CORPORATION OF THE CITY OF HAMILTON and HUMAN RIGHTS TRIBUNAL OF ONTARIO Respondents
Jennifer Zu, acting in person
Elisha Jamieson-Davies and Danika Winkel, for the Respondent The Corporation of the City of Hamilton
Jason Tam, for the Respondent Human Rights Tribunal of Ontario
HEARD at Toronto (by video conference): December 15, 2021
Oral Reasons for Judgment
Matheson J. (Orally)
[1] The Applicant seeks judicial review of two decisions of the Human Rights Tribunal of Ontario (“HRTO”), a decision dated March 5, 2019, dismissing the Applicant’s application for failure to appear, and a decision dated December 10, 2020 declining her request to reconsider the earlier decision. The Applicant was and continues to be self-represented.
[2] The Respondents object to this application and also to an affidavit filed in support of the application. In an application for judicial review, affidavit evidence is permitted to give some general background and to show fairness issues that do not appear in the record. We do not permit the affidavit, which goes beyond those categories, but note that it does not change the result. Here the key facts are already in the record before us.
[3] By way of brief background, the March 5, 2019 hearing was scheduled to take place from 9:30 AM until 12:30 PM, by telephone conference call. The Applicant admits to being almost one hour late.
[4] That morning, the Applicant had to drive her children to school because the school bus was late. After she got home, she went on her iPad and realized that she had made a mistake in setting a reminder about the hearing appointment. The Applicant called in late and no one answered. She then called the tribunal phone number and no one answered. She sent apologetic emails letting everyone that she was on the phone, saying she had written down the wrong date and that her brain was not working well. The first email was received at 10:32 AM, followed by two emails (at 10:41 AM and 10:49 AM) saying she was on the phone waiting.
[5] The Applicant was not successful in getting her hearing restarted that day and was then notified about the decision to dismiss her application as abandoned. That decision indicated that she needed to deliver a request for reconsideration and provide a full explanation about why she did not appear at the scheduled time.
[6] This request for reconsideration was the first consideration of the Applicant’s explanation.
[7] In her request for reconsideration, the Applicant explained that she suffered from depression and stress and had become forgetful. She provided a doctor’s note about her diagnosis with depression, but the note did not specify forgetfulness.
[8] The request for reconsideration was denied due to inadequate medical evidence.
[9] The Applicant requests that the HRTO’s decisions be set aside, and she be allowed to present her Application before the HRTO. The Respondent City of Hamilton seeks an order dismissing this Application. The Respondent HRTO takes no position with respect to the orders sought, but if the Application for judicial review is allowed, the HRTO asks that the Application be remitted to it.
[10] The HRTO submits that the appropriate standard of review is “patent unreasonableness” as mandated by s. 45.8 of the Human Rights Code, R.S.O. 1990, c. H. 19. The Ontario Divisional Court has repeatedly held that the post-Vavilov standard of review from a decision of the HRTO continues to be reasonableness. See e.g., Briggs v. Durham Regional Police Services, 2021 ONSC 414, at paras. 39-45. We have applied a reasonableness standard.
[11] Having considered the parties’ positions, we conclude that the HRTO decisions should be quashed and this matter remitted to the HRTO to fix a new hearing date.
[12] There is no question that the Applicant had notice of the hearing date and time. She does not suggest otherwise.
[13] Further, we agree that a party should not be able to simply say, I forgot. Here, the Applicant explained her morning, her mistake and her attempts to join in for the telephone hearing. She began trying to get in shortly after 10:30 AM and the decision from that day says that the tribunal member and other participants had been on the call as of 10:15 AM. It is also apparent that her emails were received during the 3 hours set aside for the hearing. Further, the Applicant was self-represented throughout and she did provide some medical evidence, albeit general.
[14] Further, while the HRTO standard practice may be to wait for only 30 minutes, that is not an invariable practice: see e.g., Goodridge v. Toronto Police Services Board, 2011 HRTO 1759. Further, a standard practice is only one item to consider on a request for reconsideration.
[15] Overall, the Applicant provided a sufficient explanation and it was unreasonable to refuse to reconsider the dismissal of her application as abandoned.
[16] We therefore quash the two prior HRTO decisions and remit this matter back to the HRTO in order that a new date can be set for the previously scheduled summary/preliminary hearing of the Applicant’s HRTO application.
[17] There shall be no order as to costs.
Matheson J.
I agree _______________________________
Lederer J.
I agree _______________________________
Sheard J.
Date of Oral Reasons for Judgment: December 15, 2021
Date of Written Release: December 20, 2021
CITATION: Zu v. The Corporation of the City of Hamilton, 2021 ONSC 8278
DIVISIONAL COURT FILE NO.: 21-260
DATE: 2021/12/15
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederer, Matheson and Sheard JJ.
BETWEEN:
JENNIFER ZU Appellant
– and –
THE CORPORATION OF THE CITY OF HAMILTON and HUMAN RIGHTS TRIBUNAL OF ONTARIO Respondents
ORAL REASONS FOR JUDGMENT
Matheson, J.
Date of Oral Reasons for Judgment: December 15, 2021
Date of Written Release: December , 2021