HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kathleen Magda
Applicant
-and-
Grzegorz Jaroszynski
Respondent
RECONSIDERATION DECISION
Adjudicator: Brian Eyolfson
Indexed as: Magda v. Jaroszynski
WRITTEN SUBMISSIONS BY
Kathleen Magda, Applicant ) John Nelson, Counsel
Grzegorz Jaroszynski, Respondent ) Carolyn Brandow, Counsel
INTRODUCTION
1This Decision addresses the applicant’s Request for Reconsideration (“Request”) of the Tribunal’s Decision, 2010 HRTO 1342, dated June 14, 2010, dismissing the Application after a Case Resolution Conference (“CRC” or “hearing”) at which the applicant’s counsel appeared but the applicant, herself, did not appear.
2The respondent provided written submissions on the Request, and the applicant provided reply submissions, on July 30 and August 24, 2010, respectively.
BACKGROUND
3The Application was filed under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination on the basis of disability in services. The Tribunal’s earlier Decision explains that, in addition to chronic knee and hip conditions, the applicant lives with HIV and Hepatitis C. She alleges that the respondent, an orthopaedic surgeon, failed to examine her and refused to perform surgery because of her HIV and Hepatitis C.
4In addition to denying the allegations, the respondent requested that the Application be dismissed pursuant to section 45.1 of the Code on the basis that the same facts had been dealt with in a proceeding before the College of Physicians and Surgeons of Ontario. In its Decision, the Tribunal denied the respondent’s request that the Application be dismissed pursuant to section 45.1 of the Code and proceeded to determine the merits of the Application.
5With respect to the applicant’s non-attendance at the CRC, the Tribunal’s Decision provides the following information:
5While the applicant’s counsel appeared at the hearing, the applicant herself did not appear as expected. At the outset of the hearing, her counsel advised that he did not know the applicant’s whereabouts even though he had visited her residence, buzzing and knocking on the door, and had attempted to telephone her numerous times. He sought and received a delay in the proceedings in order to visit the local hospital in case she had been hospitalized.
6After approximately an hour, counsel returned to advise he had been informed that the applicant had been recently discharged from hospital but that he still could not locate her. After asking for submissions from the parties on how best to proceed, including whether the applicant’s Application should be dismissed, counsel agreed to accept the applicant’s written statements, contained in her Application, as her evidence-in-chief. As a result, I heard the parties’ submissions and the respondent’s testimony upon which he was cross-examined.
7Sometime after the hearing, counsel wrote to the Tribunal and asked that this matter be reconvened so that the applicant could testify. …
6In addressing the applicant’s request that the CRC be reconvened to allow the applicant to testify, the Tribunal’s Decision provides the following additional information:
34In his correspondence dated November 7, 2009, the applicant’s counsel advised that about a week after the hearing the applicant had contacted him and explained she had been hospitalized on the day of the hearing. As she was hospitalized due to her disability, he submitted that the Tribunal should accommodate the applicant and re-open the CRC to allow her to testify. He submitted that, since the case rested on credibility, it was important that the applicant testify and be cross-examined.
35In his subsequent correspondence dated December 7, 2009, applicant’s counsel clarified that records support the applicant had visited the hospital the day before the hearing but he could not establish what happened after or when she was discharged. He noted the applicant’s account of the day of the hearing was hazy. He advised that the applicant had been hospitalized during the evening of October 20, 2009 and attached those records.
7In denying the applicant’s request that the CRC be reconvened, the Tribunal’s Decision states as follows:
37The applicant did not appear at the hearing on the scheduled time and date. On the day of the hearing, counsel was given time to attempt to locate his client and he was unable to do so. It appears from the subsequent information provided she was not hospitalised at the time of the hearing. The Tribunal might have dismissed the Application based on the applicant’s failure to appear but, rather, the parties both agreed on a process by which the hearing could proceed. Since the process was agreed to by counsel and the hearing was conducted on the basis of that agreement, the respondent was examined and cross-examined and I heard final submissions, I am not satisfied that it would be fair, just and expeditious in all the circumstances to reopen the hearing.
THE PARTIES’ POSITIONS
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.
9In her Request, the applicant relies upon criteria “c” and “d”, set out above. The applicant submits that the Request is based on the following three points: the Tribunal erred by failing to accommodate the applicant’s disability; the Tribunal erred in misapprehending submissions of the applicant’s counsel; and not allowing the applicant to testify is a breach of fundamental justice and the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (the “SPPA”).
10The applicant submits that the reasons for her failure to appear at the CRC were beyond her control and resulted directly from her disability. She submits that documentation (hospital and ambulance records) was provided indicating that she was taken by ambulance to the emergency department of the local hospital twice on the day before the CRC and, again, in the afternoon on the day of the CRC. The documents indicate that, on the day of the CRC, the applicant was found unconscious on her apartment floor and taken by ambulance to the hospital. She also had a seizure and was admitted to the hospital as an inpatient for approximately six days. The applicant submits that it cannot be known or proven how long she was unconscious on the floor of her apartment before being discovered and taken to the hospital and that it is possible that she was there, unconscious, at the time scheduled for the CRC. The applicant submits that, given this information, it is hard to imagine how she could possibly have been in any condition to attend at a legal proceeding, such as a CRC, on the morning of October 20, 2009.
11The applicant also submits that it is a basic tenet of fundamental justice that one has a “right to be heard”. In the circumstances of this Application, where credibility is fundamental, the applicant submits that the right to be heard includes the right of the applicant to testify and give evidence on her own behalf. The applicant relies on section 10.1 of the SPPA, which provides as follows:
A party to a proceeding may, at an oral or electronic hearing,
(a) call and examine witnesses and present evidence and submissions; and
(b) conduct cross-examinations of witnesses at the hearing reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding.
12Lastly, the applicant submits that the Tribunal misapprehended the submissions of counsel in stating that the applicant argued age discrimination. Counsel clarified that constructive discrimination on the basis of disability, as opposed age discrimination, was argued, but that the Tribunal did not consider the constructive discrimination argument.
13The respondent submits that the Tribunal’s Rules provide that the Tribunal is permitted, upon the non-attendance of a party who has been notified of a CRC, to: proceed in the party’s absence; decide the Application based solely on the materials before it; or, take any other action it considers appropriate. The respondent submits that the decision of the Tribunal to proceed with the CRC in the manner in which it did was entirely consistent with and does not conflict with Tribunal procedure.
14The respondent also submits that section 10.1 of the SPPA only permits a party to present evidence and does not require the Tribunal to ensure that the applicant presents evidence. Further, the applicant was not denied the opportunity to present evidence as her documents and Application were used as evidence. While she did not give oral evidence, she also had the benefit of not being subjected to cross-examination.
15With respect to the public interest in the finality of Tribunal decisions, the respondent submits that it would be unfair to allow the applicant to re-open her case without also permitting the respondent to re-open his case and that there is an impact in terms of time and expense in having the respondent attend another CRC. Further, having the respondent attend another CRC would have an impact on his patients and result in appointments and/or surgeries being rescheduled and likely delayed.
DECISION
16Section 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.
17In addition to Rule 25.5 referred to above, the Tribunal has issued a Practice Direction on Reconsideration to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers. The Tribunal’s Practice Direction on Reconsideration states, in part, as follows:
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.
18As 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. See Higgins v. Community Living Mississauga, 2010 HRTO 1707, at para. 6.
19In 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.
20I have carefully considered the submissions of the parties. In my view, it appears more likely than not that the applicant was not able to attend the CRC on October 20, 2009, due to a serious medical condition. On the day of the CRC, the applicant was found unconscious and taken to the hospital by ambulance. She had a seizure and was admitted to the hospital for approximately six days. In the circumstances, I am also satisfied that the applicant was not able to inform her counsel or the Tribunal that she was not able to attend the CRC due to her medical condition.
21Rule 1 of the Tribunal’s Rules states that the Rules “will be liberally interpreted and applied by the Tribunal to facilitate an accessible process and to ensure a fair, just and highly expeditious process” for the determination of Transitional Applications.
22In addition, the Tribunal’s Policy on Accessibility and Accommodation states that the Tribunal “wants to ensure that everyone who uses its services can ask for and receive accommodation… and be able to participate in its proceedings on an equal basis”. The Policy also states that “[s]ervices should be provided in a manner that fosters physical and functional access to the Tribunal’s processes and promotes the inclusion, and full participation of members of the public”.
23I have considered that, in this case, counsel agreed that the applicant’s written statements, contained in her Application, could be accepted as her evidence-in-chief and the hearing proceeded on that basis. I note, however, that this agreement was reached in the face of the possible dismissal of the Application, due to the applicant’s non-attendance at the CRC, at a time when the parties and the Tribunal were not aware of the reasons for the applicant’s non-attendance.
24I have also considered the importance of the public interest in the finality of Tribunal decisions, which is recognized in the Tribunal’s Rules and Practice Direction on Reconsideration. See also Sigrist and Carson, supra. I am also mindful that, in this case, the respondent attended the CRC with counsel and gave evidence and that granting the applicant’s Request will likely necessitate a new hearing as the Tribunal Member who presided at the CRC is not longer with the Tribunal. Although I note that it appears the hearing, including submissions on the respondent’s request that the Application be dismissed pursuant to section 45.1 of the Code, began late and was conducted within one day.
25In the exceptional circumstances of this case, I find that it would not be fair or just to deprive the applicant of meaningful access and full participation to the only process available to her to seek redress for what she believes to have been a violation of her fundamental human rights. In my view, such access is particularly important where, as in this case, it appears that the Tribunal’s Decision turned largely on credibility.
26As a result, I find that in the specific circumstances of this case, where, due to a serious medical condition, the applicant was not able to attend the hearing to give evidence in person, and the Tribunal’s Decision turned largely on credibility, the interest in ensuring access to justice outweighs the public interest in the finality of Tribunal decisions.
27The Request for Reconsideration of the Tribunal’s Decision on the merits of the Application is granted. Given that a new hearing will be required, it is not necessary for me to address the applicant’s argument that the Tribunal misapprehended counsel’s submissions with respect to constructive discrimination at the CRC.
28The Tribunal will schedule a telephone conference call with the parties to address any case management issues, including how to best proceed with the new hearing in the most fair, just and expeditious manner.
Dated at Toronto, this 3rd day of November, 2010.
”signed by”____________
Brian Eyolfson
Vice-chair