Hodge v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1738

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Hodge

Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Minister of Community Safety and Correctional Services

Respondent

RECONSIDERATION DECISION

Adjudicator: Faisal Bhabha

Date: August 24, 2010

Citation: 2010 HRTO 1738

Indexed as: Hodge v. Ontario (Community Safety and Correctional Services)

BACKGROUND

1The applicant filed an Application dated March 1, 2010 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).

2The Application states that the date of the last event is July 28, 1976, when the applicant began a period of incarceration of just over nine months further to a court order.

3In a Notice of Intent to Dismiss dated April 15, 2010, the Registrar noted that the Application appeared to be beyond the statutory one year timeframe for filing an Application. The applicant was given 30 days to make submissions to the Tribunal to explain the delay. No submissions were received and a Decision, 2010 HRTO 1419 dated June 28, 2010, dismissed the Application for delay.

4On August 13, 2010, the applicant filed a Request for Reconsideration. He claims that he did not receive the April 15, 2010 Notice of Intent to Dismiss. Included in his Reconsideration Request are his submissions on the delay issue. The applicant explains the more than 30 year delay as being a result of difficulties accessing government documents related to his detention. He argues that he obtained those files in 1998, and only then did he uncover the “proof” of his “forcible confinement”. He subsequently endeavoured to “get the government to do something, with no government person wanting to take responsibility”. He states that his last contact with the respondent was in August 2008. His correspondence went unanswered, which he alleges amounted to a further incident of discrimination.

REQUEST FOR RECONSIDERATION

5Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, 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.

6It is also useful to consider the Tribunal’s Practice Direction on Reconsideration, which states in part:

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.

7The applicant relies on Rule 26.5(b), arguing that, through no fault of his own, he did not receive notice of the proceeding, specifically, the Registrar’s Notice of Intent to Dismiss. He claims to have a witness to the fact that he did not receive the Notice. He provides no specifics about what this witness’s evidence would be or how it establishes that the Notice was not delivered.

8Pursuant to the Tribunal’s Rules, delivery of documents is presumed completed where it is sent by regular mail to the address provided by the party and is not returned as undeliverable. The Tribunal has confirmed that the Notice was sent to the correct address, it was not returned as undeliverable and subsequent correspondence sent to the same address appear to have been delivered successfully.

9There is clearly a dispute as to whether the presumption of successful delivery ought to be rebutted by the applicant’s unsubstantiated claim that he did not receive the Notice. In order for me to determine the issue, I would likely need to hear more from the applicant and his witness. However, on the facts before me, even if I accepted the applicant did not receive the Notice, I am not satisfied the applicant has provided a good faith basis for his delay in filing this Application. My reasons follow below.

DECISION

10Section 34 of the Code states:

34.(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) Within one year after the incident to which the Application relates; or

(b) If there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

11On the Application, in response to the question, “What was the date of the last event?” the applicant stated “28/07/1976”. He now appears to be alleging a series of events up to and including August 2008. I am not prepared to accept that allegation at this point. Reconsideration is not an opportunity to change the facts alleged in the pleadings. In any event, the applicant has still not pleaded a series of allegedly discriminatory events that falls within the limitation period.

12Given that the Application was not filed within one year of the date that the applicant alleges the respondent last discriminated against him, I therefore must determine whether the delay in filing this Application was incurred in good faith.

13In deciding the issue of good faith, the Tribunal has considered factors such as the duration of the delay; whether Code-related reasons directly impeded the applicant’s ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674. Based on the information before me, the applicant has not provided a persuasive reason why he could not have met the Code deadline.

14The explanation the applicant provides for the delay is that, first, for about 20 years he was trying to obtain information and documents that would support his case from government agencies; and secondly, for the next 10 years he tried unsuccessfully to communicate with the respondent to resolve the matter.

15It is clear that the applicant believed he had been discriminated against at the time of the original events in 1976. It then took him more than 20 years to obtain documents that he feels support his claim of discrimination. The Tribunal has held that good faith does not “allow aggrieved persons to delay making a claim in order to gather evidence that confirms their suspicions or buttresses their case.” See Klein v. Toronto Zionist Council, 2009 HRTO 241 at para. 23. Regarding the communications with the respondent, while it is understandable that an applicant may first attempt direct negotiations and discussions to resolve the matter, the delay in this case is simply too long, and the explanation from the applicant too general to meet the test for good faith.

16Therefore, even if I were prepared to reconsider the Decision in the light of the applicant’s submissions on delay, I find the applicant unable to establish that the delay in filing this Application was “incurred in good faith” as required under section 34(2) of the Code.

17The request to reconsider is refused.