Bayongan v. Shimmura and another (No. 2), 2024 BCHRT 254
Date Issued: September 5, 2024
File: CS-004122
Indexed as: Bayongan v. Shimmura and another (No. 2), 2024 BCHRT 254
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Marites Bayongan
COMPLAINANT
AND:
Yoshiko Shimmura and Yoshiki Shimmura
RESPONDENT
REASONS FOR DECISION
APPLICATION TO EXPEDITE AND RECONSIDER A DECISION
RULES 17 AND 36
Tribunal Member: Amber Prince
Counsel for the Complainant: Jonathon Braun
Counsel for the Respondent: Ravi R. Hira, K.C.
I INTRODUCTION
[1] Marites Bayongan filed a complaint against Yoshiko and Yoshiki Shimmura [theRespondents]. Ms. Bayongan’s complaint proceeded to a hearing on June 8-9, 2022. On March 22, 2023, I issued a decision on the merits of Ms. Bayongan’s complaint: Bayongan v. Shimmura and another , 2023 BCHRT 27 [Original Decision]. In the Original Decision, I determined that Ms. Bayongan proved her complaint, in part, and I ordered remedies accordingly.
[2] The Shimmuras apply to have the Original Decision reconsidered. The basis for their application is that unknown to them, their former legal counsel did not file closing submissions on their behalf. As a result, the Shimmuras say they did not have a fair opportunity to be heard prior to the Tribunal issuing the Original Decision. The Shimmuras say that this unfairness can only be corrected by setting aside the Original Decision and re-opening the hearing of the complaint.
[3] Since the application for reconsideration is late, the Shimmuras also seek to the extend the 14-day time limit to apply for reconsideration. Ms. Bayongan consents to the Shimmuras’ reconsideration application. Both parties request that the Tribunal expedite the application for reconsideration.
[4] For reasons that follow, I have expedited and allowed the application for reconsideration. In doing so, I have granted the request for an extension of time to apply for reconsideration. In these exceptional circumstances, I allow the Shimmuras’ application for reconsideration. As a result, the Original Decision is set aside and will be reopened.
II BACKGROUND
[5] In the hearing of Ms. Bayongan’s complaint, the parties were represented by counsel and provided the opportunity to make closing submissions. Following the hearing of the evidence, the Tribunal set a schedule for the exchange of written closing submissions. Ms. Bayongan’s counsel filed a timely closing submission, but the Shimmuras’ former counsel did not. Despite four extensions of the deadline to provide a closing submission, the Shimmuras’ former counsel did not file a closing submission on their behalf. As a consequence, I only considered Ms. Bayongan’s closing submission in the Original Decision.
[6] Represented by new counsel, the Shimmuras sought judicial review of the Original Decision. The Petition was set to be heard in the BC Supreme Court on August 27, 2024, but was adjourned to November 12, 2024, due to a lack of available judges.
[7] The parties advised the Tribunal that Ms. Bayongan’s health has worsened, and given her condition, she wishes to be with family in the Philippines as soon as possible. Given this change in circumstances, the parties recently discussed alternatives to resolution of this matter and agreed to pursue the Shimmuras’ reconsideration application on consent. The parties jointly request that I expedite the reconsideration application given Ms. Bayongan’s health circumstances.
[8] The Shimmuras make the following submissions in support of their reconsideration application:
· There was no “retainer issue or a failure to give instructions issue” between the Shimmuras and their former counsel. Put simply, the Shimmuras believed that their former counsel was going to provide the submissions and were unaware of his extension requests.
· The Shimmuras first learned that their former counsel did not provide a closing submission on the release of the Original Decision and by reading paragraph 6 of the decision.
· The Shimmuras have been denied the opportunity to respond to Ms. Bayongan’s closing submissions and make their own submissions about the merit of Ms. Bayongan’s complaint and the remedies she sought.
· The application for reconsideration was delayed because of new and unusual circumstances which arose after the Shimmuras made a timely petition for judicial review.
III ANALYSIS AND DECISION
A. Whether to Expedite the Application for Reconsideration
[9] Rule 17 of the Tribunal’s Rules of Practice and Procedure [Rules] provides that the Tribunal “may deal with a complaint using alternate processes or timelines to those set out in these rules to facilitate the just and timely resolution of the complaint”.
[10] The parties jointly request that I expedite the Shimmuras’ application for reconsideration. The basis for the request to expedite is Ms. Bayongan’s health circumstances. The parties submit that Ms. Bayongan’s health has worsened, and given her condition, she wishes to be with family in the Philippines as soon as possible. I take from the parties’ submissions that their next steps in this matter, including Ms. Bayongan’s urgent wish to be with family, will be impacted by this decision. Put another way, I infer that Ms. Bayongan’s decisions about returning to the Philippines depends on the final resolution of this matter between the parties.
[11] I am persuaded by the parties’ submissions to expedite this decision. The information before me is that Ms. Bayongan’s health has worsened. Understandably, she wishes to be with family. It appears that the parties’ next steps, including Ms. Bayongan’s desire to be with family in the Philippines hinges, to some degree, on the outcome of this decision. In the circumstances, I am satisfied that following the usual timelines to decide on the Shimmuras’ application risks undermining a just and timely resolution of Ms. Bayongan’s complaint. Therefore, I have expedited this decision.
B. Whether to Extend the Time Limit for Reconsideration
[12] Rule 36(2) of the Tribunal’s Rulessets a time limit to file a reconsideration decision: A party must apply to reconsider a decision within 14 days of the date on which the circumstances that form the basis of the application came to the party’s attention or could have come to the party’s attention if the party exercised reasonable diligence, whichever is earlier.
[13] The Tribunal has authority to waive or vary time limits set out in the Rules, as it considers appropriate: Rule 2(2). In exercising this discretion, the Tribunal considers that the purpose of the Rules is to “facilitate the just and timely resolution of complaints”: Rule 1(1). Relevant factors may include: whether there are serious grounds for reconsideration, the length of the delay, the explanation for the delay, and prejudice to any person:MacLennan v. BC Ministry of Public Safety and Solicitor General,2018 BCHRT 214, para. 19.
[14] The reconsideration application was filed on August 28, 2024. The circumstances that form the basis of the application is the Shimmuras learning that their former counsel did not file a closing submission on their behalf. This issue came to the Shimmuras’ attention on or about March 22, 2023 when I issued the Original Decision, and they read paragraph 6. It appears to me that the Shimmuras should have filed their application for reconsideration within 14 days after March 22, 2023, and that their application is now considerably late.
[15] For several reasons, I am persuaded that it furthers the just and timely resolution of this complaint to waive the time-limit and allow the Shimmuras’ late-filed application for reconsideration.
[16] First and most importantly in the circumstances of this case, Ms. Bayongan consents both to the extension of the time limit and to the re-opening of the hearing.
[17] Second, there are serious grounds for reconsideration. The undisputed evidence is that the Shimmuras were denied the opportunity to make a closing submission. That submission could have made a difference to the outcome of the Original Decision.
[18] Third, I accept the Shimmuras’ explanation for the delay. They made a timely petition for judicial review of the Original Decision. However, the parties’ ability to resolve that petition has been impacted by new circumstances: a delay in the petition being heard due to a lack of judges, Ms. Bayongan’s extenuating health circumstances, and given those circumstances, her wish to be with family in the Philippines. The parties have an interest in a timely resolution of their ongoing dispute. Due to new circumstances outside of their control, their efforts towards a resolution since the Original Decision was issued, have become untenable.
[19] Fourth, I see no prejudice to any person in allowing the reconsideration application. Ms. Bayongan supports the Shimmuras’ reconsideration application, in light of new circumstances, including her health condition.
[20] For these reasons, I am satisfied that it furthers the just and timely resolution of the complaint to waive the time-limit and consider the Shimmuras’ late-filed application for reconsideration. Next, I consider the merits of the reconsideration application.
C. Whether to Reconsider the Original Decision
[21] An application for reconsideration is an extraordinary remedy. The Tribunal has a limited jurisdiction to reconsider its own decisions: Rule 36. Specifically, the Tribunal may reconsider a decision if it is in the interests of justice and fairness to do so: Routkovskaia v. British Columbia (Human Rights Tribunal) , 2012 BCCA 141, para. 23. The Tribunal exercises this power sparingly, giving due consideration to the principle of finality in administrative proceedings: Grant v. City of Vancouver and others (No. 4),2007 BCHRT 206 [Grant], para. 10.
[22] The Tribunal may reconsider a decision where a party or their counsel made an error. For example: where a party’s counsel did not provide the party’s submission: Zutter v. British Columbia (Council of Human Rights) , 1993 CanLII 2582 (BC SC); aff’d. 1995 CanLII 1234 (BC CA); leave to appeal to S.C.C. refused [1995] S.C.C.A. No. 243);Byrnes v. RFGOP Restaurant Holdings and others (No. 4), 2006 BCHRT 292. Where a party relies on this type of error, as a basis for reconsideration, the Tribunal has considered: the party’s explanation for the error, the reasonableness of that explanation, any prejudice to another party, and any other relevant factors arising in the circumstances of the particular case: Maydak v. B.C. (Ministry of Public Safety and Solicitor General and Ministry of Attorney General) (No. 2) , 2007 BCHRT 455, para. 9.
[23] After considering the relevant legal principles, and the specific circumstances in this case, I am persuaded that it is in the interests of justice and fairness to reconsider and re-open the Original Decision.
[24] In the Original Decision, I made a decision on the merits of Ms. Bayongan’s complaint, and the remedies sought. In arriving at that decision, I took into account Ms. Bayongan’s closing submission. See, for example, the Original Decision at paragraph 80.
[25] Now, in their application for reconsideration, the Shimmuras explain that, through no fault of their own, no closing submission was provided on their behalf.
[26] I accept the explanation offered by the Shimmuras, through their new counsel. Their evidence is that they believed their former lawyer would file a closing submission on their behalf. Inexplicably, and unknown to them, that did not happen. Given their explanation, the Shimmuras cannot be faulted for failing to file a closing submission for my consideration in the Original Decision.
[27] Most importantly, however, Ms. Bayongan does not dispute the Shimmuras’ explanation for not filing a closing submission and agrees that the situation warrants reconsideration to fix an unfairness. She consents to the Shimmuras’ application for reconsideration, given the parties’ new circumstances, as discussed earlier. In the circumstances, I am satisfied that Ms. Bayongan will not be prejudiced by my reconsideration of the Original Decision.
[28] Further, I agree with the Shimmuras that the lost opportunity to make closing submissions is important. In the Original Decision, I made findings of discrimination and remedial orders against the Shimmuras. The Original Decision rests upon a presumption that each party had a fair opportunity to make the submissions they were entitled to make. While the Tribunal provided the Shimmuras with that opportunity, it turned out that, through no fault of their own, they did not realize the opportunity in a decision that affected them.
[29] The parties agree that the Original Decision rests upon a serious unfairness to the Shimmuras. Recognizing that I do not have the benefit of former counsel’s evidence, I am satisfied, on the material before me, that the Original Decision must be set aside. In these exceptional circumstances, the Shimmuras’ application for reconsideration is granted. The Original Decision is set aside, and the matter is reopened. The Tribunal will contact the parties regarding next steps.
IV ORDERS
[30] For the reasons given in this decision, I order as follows:
a. I allow the parties’ application to expedite the reconsideration application.
b. I grant an extension of time for the Shimmuras to apply for reconsideration.
c. I allow the application for reconsideration. As a result: the Original Decision is set aside, and the matter is reopened.
Amber Prince
Tribunal Member
Human Rights Tribunal