Bright (Zeguo) Qiu v. The Regional Municipality of York Police Services Board, 2010 HRTO 1090

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bright (Zeguo) Qiu

Applicant

-and-

The Regional Municipality of York Police Services Board,

Matthew Ma and Reynaldo Corpuz

Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: May 14, 2010

Citation: 2010 HRTO 1090

Indexed as: Qiu v. Regional Municipality of York Police Services Board

1This Decision addresses a Request for Reconsideration by the applicant in relation to the Tribunal’s Decision dated December 16, 2009, 2009 HRTO 2187, dismissing this Application pursuant to s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) .

2On December 28, 2009, the applicant filed a request for reconsideration of the Tribunal’s decision.

3Section 45.7 of the Code provides as follows:

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.

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The 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. See Practice Direction on Reconsideration, January 2008, amended June 2008.

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

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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.

7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

8The Tribunal’s Rules of Procedure for Transitional Applications provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 25.5 of the Rules provides:

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.

9As a result, I need to determine whether the material filed by the applicant in support of his Request for Reconsideration satisfies any of the criteria set out in Rule 25.5.

10The primary basis upon which the applicant seeks reconsideration of my Decision relates to the 9-1-1 recording. First, I note that this is not “new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier” within the meaning of Rule 25.5(a). As addressed in my Decision, while the audio recording of the 9-1-1 call made by the applicant was not available to him at the time his complaint under the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”), was reviewed by the Ontario Civilian Commission on Police Services (“OCCPS”), the audio recording was made available to the applicant prior to the hearing in this matter on October 20, 2009, and was tendered into evidence and marked as an exhibit to this proceeding.

11In any event, the applicant alleges that “it is undeniable fact that Vice-chair Mark Hart has announced the decision above before the hearing hold on October 20, 2009”. The basis upon which this allegation is made is that my Decision states that I concur with the finding of the police investigator that the 9-1-1 recording is very hard to decipher. The applicant states that the 9-1-1 recording had already been deciphered by him and a transcription provided at the hearing.

12First, I did not make my Decision prior to the October 20, 2009 hearing and only made my Decision after careful consideration of the evidence and the submissions made by the parties, including an audio review of the 9-1-1 recording following the hearing.

13Second, while the applicant has submitted what he purports to be a transcript of the 9-1-1 recording, this document is not entirely accurate. For example, as stated in my Decision and as re-confirmed by me again through a further audio review of the 9-1-1 recording, I can clearly hear someone who I believe to be the applicant saying “easy” several times. This is not indicated anywhere on the document that the applicant has prepared and submitted. In addition, the applicant’s document records Constable Corpuz as shouting, “I can fight you force” and “I have the right to fight you at force”, when what Constable Corpuz actually says is clearly, “I have the right to use force” and he is not shouting when he says this. There are numerous other differences between the actual recording and the transcript as prepared by the applicant.

14As stated in my Decision, I cannot make out much of what, if anything, Constable Corpuz is saying and do not hear him say, “put down the phone, this is the police, easy”, as stated in the police investigation report. I do acknowledge in my Decision that Constable Corpuz “may have said this”, because there are three different voices on the recording sometimes speaking all at once and what Constable Corpuz is saying, being the farthest from the phone, is at times hard to decipher.

15As stated in my Decision, the 9-1-1 recording does not materially affect the evidence that was included in the police investigation report. Constable Corpuz was asserting his right to use force, which was addressed in the report. The applicant states that he can’t use force “like this”, with is consistent with his statement on the tape that he was being beaten and is consistent with the allegations raised in his PSA complaint. As I find in my Decision, there is nothing about the 9-1-1 recording which materially alters the evidence that was already known to the applicant or materially affected his ability to present his case as part of the police investigation and to make submissions in support of the OCCPS review.

16The applicant submits that this is just my “personal view” and that the value of evidence must be assessed by a “professional and neutral party, not judger himself”. I am a professional and neutral adjudicator appointed under the Code, and it is my responsibility to assess the evidence before me and make decisions.

17The applicant further alleges that the police investigation “was tainted by fraud, dishonesty and unfairness” on the basis of the statement in the report that Constable Corpuz said “put down the phone, this is the police, easy”, which the applicant submits is not part of the audio recording of the 9-1-1 call. This was an argument already raised before me by the applicant at the hearing in this matter. As stated in my Decision and above, I cannot hear Constable Corpuz make this statement, but I can’t say conclusively that it wasn’t made. In addition, even if the police investigator did inaccurately relate what is on the 9-1-1 recording, this is a far cry from fraud, dishonesty or unfairness. For the reasons stated in my Decision and above, I find that the evidence from the actual 9-1-1 recording would not materially have affected the outcome of the OCCPS review.

18The applicant further submits that the respondents cannot rely upon s. 45.1 of the Code because there was no earlier “proceeding” that dealt with the substance of his Application. The applicant states that the investigation process under the PSA and the review by OCCPS are not “proceedings” within the meaning of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. This is an argument that already has been extensively addressed in my Decision, and I see no proper reason to change the determination that I have made.

19Finally, in his Request for Reconsideration, the applicant repeats the allegations that form the substance of his Application against the respondents and repeats submissions that he made before me and to OCCPS regarding what he identifies as inconsistencies between the evidence of the officers and other witnesses.

20In my Decision, I note that it is not my role under s. 45.1 to re-assess the evidence from the other proceeding to decide whether I would have come to the same conclusion. Rather, as stated in my Decision, the question for me was whether the police investigation and OCCPS review were conducted using a fair process in which the applicant was afforded an opportunity to present his allegations and supporting evidence and where there was nothing on the face of the police investigation report or OCCPS review to indicate that these bodies failed to recognize human rights principles in reaching the determinations that they did.

21For all of the reasons set out in my Decision, I find that the investigation and review were conducted using a fair process in which the applicant was afforded the opportunity to present his allegations and supporting evidence, including his submissions regarding inconsistencies in the evidence, and that there was nothing to indicate any failure to recognize human rights principles. I see no proper basis to change my determination in this regard.

22For all of these reasons, the Request for Reconsideration is denied.