Sinclair v. London (City), 2009 HRTO 162

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vincent Sinclair

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Corporation of the City of London

Respondent

RECONSIDERATION DECISION

Adjudicator: David A. Wright

Date: February 13, 2009

Citation: 2009 HRTO 162

Indexed as: Sinclair v. London (City)

WRITTEN SUBMISSIONS BY

Vincent Sinclair, Complainant ) On his own behalf

INTRODUCTION

1The complainant, Vincent Sinclair, seeks reconsideration of the Tribunal’s decision in this matter dated July 25, 2008: Sinclair v. London (City), 2008 HRTO 48, on the basis that he has obtained new evidence that should have been disclosed sooner, among other reasons. The Request was filed with the Tribunal on December 30, 2008.

2Mr. Sinclair alleges that reports he obtained under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, about other incidents where security personnel were involved with his activities at City Hall suggest that he was under “unwanted surveillance” at City Hall. The three reports are dated May 6, 2003, May 8, 2003, and May 23, 2003. The May 6 report relates to a call an officer received regarding an alleged disturbance Mr. Sinclair caused in the Councillor’s Office Reception Area. The May 8 report advises that Mr. Sinclair was “monitored” during the time he spent in the building and did not cause a disturbance. The May 23 report suggests that a security officer was dispatched to the City Clerk’s office to observe Mr. Sinclair.

3At the hearing, Mr. Sinclair testified that the security guard who asked him to leave City Hall was present throughout his interaction with Michelle Smibert of the City Clerk’s office, while the respondent’s witnesses testified that he arrived during an altercation with her after he became loud and aggressive. At paras. 42-50 of the original decision, I accepted the respondent’s witnesses’ versions of these events. Mr. Sinclair suggests that the reports he has now submitted support his version of events by suggesting that he was being monitored on other occasions, making it more likely that the security guard was present throughout his interaction with Ms. Smibert.

RECONSIDERATION

4Rules 98-102 of the Rules of Practice deal with reconsideration. They read as follows:

98. Any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision.

99. A request for reconsideration must be made in Form 7 and be delivered to all parties, along with a copy of the “Notice of Request for Reconsideration” (Notice 1) before it is filed with the Tribunal.

100. A request for reconsideration must include:

(a) reasons for the request, including the basis upon which the Tribunal is asked to grant the request for reconsideration;

(b) submissions in support of the request; and

(c) the remedy or relief sought.

101. A party who has been served with a request for reconsideration need not file a response with the Tribunal unless the Tribunal directs that a response is required. Where a party is directed to file a response to the request, it must include complete written representations in support of its position.

102. 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;

(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;

(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 and orders.

5As of the date the request for reconsideration was filed, Rule 3 of the Tribunal’s Rules of Practice provided that these rules did not apply to complaints referred to the Tribunal prior to December 20, 2006. This rule was subsequently repealed on January 9, 2009. For the purposes of this request, I assume that reconsideration is permitted, and, to the extent necessary, exercise my discretion under Rule 17 to waive or vary the former Rule 3 to permit reconsideration.

TIMELINESS

6Rule 98 imposes a general 30-day time limit on requests for reconsideration. Mr. Sinclair asserts as follows:

The reason for not making an earlier request for reconsideration is that I have reason to believe evidence by a revised decision letter dated October 31; within that letter adverse inference can be drawn that an attempt was made to suppress the information within; enclosed Freedom of Information application as an exhibit. [sic]

7In a letter dated January 20, 2009, the Registrar wrote to the parties as follows:

The Tribunal received a Request for Reconsideration from Vincent Sinclair on December 30, 2008.

Paragraph M of the request refers to a decision letter dated October 31, 2008 which was not attached to the Request. Mr. Sinclair is directed to, by January 27, 2009, (a) provide a copy of the letter of October 31, 2008; and (b) advise the Tribunal of the date he first received the reports dated May 8, 2003 and May 23, 2003 that are attached to the request.

8Mr. Sinclair replied as follows:

I am deeply sorry that I am unable to satisfied your request with respect to the October 27^th letter in support of my request for Re-consideration of Chairman Wright’s Decision.

As a result I ask of your indulgence which will enable me to provide further evidence to satisfied any reasonable person that city of London mislead ‘Human Rights Investigator Mr. Jeff Knop’ resulting in trickle down information by the corporation of the City of London. As a result of my numerous F O I request therefore it is reasonable and appropriate that the truth be told. [sic]

9Mr. Sinclair has provided no valid reasons for making his request more than five months following the decision. He refers, in his request, to a letter dated October 31 (although he is unable to produce it) but did not act within 30 days of obtaining this letter. Accordingly, the request for reconsideration is dismissed on the basis that it was made outside the time limit in the Tribunal’s rules, and Mr. Sinclair has provided no valid reason why it should be extended in these circumstances.

10Moreover, reconsideration would not be justified even if the request were timely. Rule 102(a) sets out the test for reconsideration on the basis of new facts or events. The new evidence must “potentially be determinative of the case” and “could not reasonably have been obtained earlier”. The reports provided by Mr. Sinclair are not potentially determinative of the issue of whether race was a factor in his removal from City Hall on the date in question. They are, at best, a factor I could have taken into account in determining the credibility of the various witnesses. They do not address the central issue in the case, which is whether race was a factor in the City’s decision to involve security during the incident in question.

11Moreover, they could reasonably have been obtained earlier by requesting production, prior to the hearing, of reports of other incidents involving Mr. Sinclair. As noted in the original decision at para. 69, the Commission made a last minute request for such records after it had closed its case, and respondent counsel “agreed to make efforts to locate such documents, although he stated that it may be impossible to do so on such short notice”. With reasonable diligence, these reports could have been obtained much sooner. Mr. Sinclair apparently made the freedom of information request after the hearing. He could have made a production (or freedom of information) request during the nearly five years between the incident and the hearing.

12There is also no foundation for the various serious allegations made against counsel for the City of London and its witnesses in the reconsideration request. There are no factors that outweigh the public interest in the finality of Tribunal decisions.

13The request for reconsideration is dismissed.