Higgins v. Community Living Mississauga, 2010 HRTO 1707

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Winsome Higgins

Applicant

-and-

Community Living Mississauga and Janet Lorimer

Respondents

Reconsideration DECISION

Adjudicator: Mark Hart

Date: August 17, 2010

Citation: 2010 HRTO 1707

Indexed as: Higgins v. Community Living Mississauga

WRITTEN SUBMISSIONS BY

Winsome Higgins, Applicant ) Glen Morrison, ) Representative

Community Living Mississauga and ) Alexander Curry, Janet Lorimer, Respondents ) Counsel

1This Decision addresses a request for reconsideration by the applicant in relation to the Tribunal’s Decision 2010 HRTO 30, dated January 7, 2010 dismissing the Application due to the applicant’s failure to rectify certain deficiencies in the Application she filed.

2On March 5, 2010, the applicant filed a Request for Reconsideration of the Tribunal’s Decision. The Tribunal requested that the respondents file a Response to Request for Reconsideration, which they did on April 21, 2010.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (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 (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 her Request for reconsideration satisfies any of the criteria set out in Rule 25.5 upon which she relies. I also need to consider whether to exercise my discretion to extend the time for filing the reconsideration request, as it was filed beyond the 30 day time limit established in the Rules.

10With regard to whether I should grant an extension of time to file the reconsideration request, I note that the applicant’s position is that her delay in filing the request was due to her inability to retain legal representation. She states that she was unrepresented until March 4, 2010, which appears to have been when she retained her current representative. The Request for Reconsideration was filed the following day.

11The respondents object to the granting of an extension of time, on the basis that the applicant has not detailed her efforts to retain legal representation following receipt of the January 7, 2010 Decision and on the basis that she should have been capable of completing the simple form required to meet the deadline within the required 30 days.

12I am exercising my discretion to extend the time for filing of the reconsideration Request. The request was filed less than one month after the 30 day deadline, and was filed one day after the applicant’s representative was retained. In addition, I note that on March 25, 2010, the Tribunal requested that the applicant serve and file an Application that corrected the deficiencies that had been identified within 14 days, and that this was done promptly by filing a completed Application, dated April 8, 2010.

13In my view, now that the applicant has retained legal representation, she has been acting diligently to proceed with her Application. While the applicant has not detailed her specific efforts to obtain legal representation following receipt of my Decision, I accept her submission that she did make efforts that led to the retaining of her current representative on March 4, 2010 and that thereafter her representative acted diligently after being retained. I find that these factors provide a sufficiently valid reason to grant the extension of time.

14On the Request for Reconsideration filed by the applicant’s representative, she is relying upon criterion (d), namely that other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

15The applicant states that she had significant difficulties in understanding the Tribunal’s process, and that this is what caused there to be defects in the Application she filed. Her representative states that the applicant is not sophisticated or legally trained, and had sought and been denied assistance by at least two legal clinics. It is also stated that she had insufficient funds to retain legal representation.

16The respondents in response rely upon what they submit is a history of the applicant not moving her claim along in the Commission process, and provided documentation to support the applicant being the cause of delays in that process to the extent that in October 2006, the Commission issued a report recommending that the complaint be dismissed due to its unsuccessful efforts to engage the applicant in its process.

17However, I note that this report did not result in dismissal of the applicant’s complaint by the Commission, but the matter instead was referred first for mediation, which did not proceed, and then for investigation.

18From the materials filed by the respondents, it appears that the applicant does have a history of being only sporadically engaged in the processing of her human rights claim, and she appears to be prompted to action only when dire consequences are threatened or actually occur.

19However, I have to balance that against the fact that the applicant’s claim has never been heard or determined on its merits. With the changeover to the new human rights system in this province, the applicant was entitled to file a transitional application based on the complaint she had filed at the Commission and she made an effort, albeit deficient, to do so.

20To date, while the respondents have filed their Response and have responded to the Request for Reconsideration, this situation is not, in my view, analogous to those cases where well into the pre-hearing process, an applicant seeks a last minute extension or adjournment because she or he is seeking to retain or has just retained legal representation. This situation has occurred very early in the Tribunal process and prior to significant steps having to be taken by the respondents to engage the Tribunal process.

21The applicant now has a legal representative and has now given every indication that she is both engaged with the process and has the representation she requires in order to understand and comply with its requirements. In these circumstances, I find that it would not be fair or just to deprive the applicant of access to the only process available to her to seek redress for what she believes to have been a violation of her fundamental human rights. Whether her rights under the Code were in fact violated is a matter to be determined after a hearing and consideration of all of the evidence.

22As a result, I find that in the specific circumstances of this case and in the absence of any determination on the merits of the Application, the interest in ensuring access to justice outweighs the public interest in the finality of Tribunal decisions.

23Accordingly, the Request for Reconsideration is granted. Within ten calendar days of the date of this Decision, the parties shall advise whether they are interested in mediation. If so, the Tribunal will proceed to schedule a mediation date. If not, the Tribunal will schedule the matter for hearing.