HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hardev Kumar

Applicant

-and-

William Osler Health Centre o/a Etobicoke General Hospital and Dr. Sameer D’Souza

Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: November 30, 2010

Citation: 2010 HRTO 2379

Indexed as: Kumar v. William Osler Health Centre

[1] This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision in [Kumar v. William Osler Health Centre 2010 HRTO 1766](https://www.minicounsel.ca/hrto/2010/1766) dated August 27, 2010, which dismissed this Application.

[2] On September 21, 2010, the applicant filed a Request for Reconsideration of the Tribunal’s Decision.

[3] Section 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.

[4] Under 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).

[5] The 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.

[6] As 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.

[7] In [Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34](https://www.minicounsel.ca/hrto/2008/34), 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.

[8] The 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.

[9] As 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. The applicant relies upon the criteria identified in Rule 25.5(c), namely that my Decision is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.

[10] The applicant first takes the position that the Tribunal’s Rules regarding reconsideration are in conflict with s. 45.7 of the Code. This submission is in error, as s. 45.7 of the Code clearly states that reconsideration is available “in accordance with the Tribunal rules”, and does not provide the kind of broad-based right to reconsideration that was afforded under s. 37 of the former Code. Rather, pursuant to the express authority granted to this Tribunal under s. 45.7 of the Code, the Tribunal has made rules which set out the specific bases upon which reconsideration may be sought and granted.

[11] The applicant submits that Dr. D’Souza may have inserted into his clinical notes after the fact that the applicant had “lied” about his drinking. This was a submission that was made before me at the hearing. Based upon the oral evidence that I heard, and my assessment of the credibility of the parties, I preferred Dr. D’Souza’s evidence and found that the applicant had not been forthcoming about his drinking when first examined by Dr. D’Souza. I see no reason to change this finding or my assessment of credibility.

[12] The applicant submits I should not have accepted Dr. D’Souza’s evidence about the applicant’s state of intoxication because there was no reference to this in the notes of the ambulance attendants or other hospital staff. While it is correct that there is no reference to the applicant’s intoxication in the other notes, the test performed by Dr. D’Souza regarding the applicant’s alcohol level is, in my view, conclusive evidence of the applicant’s state of intoxication, as supported by the applicant’s own admissions of how much he had drunk on cross-examination, as thoroughly reviewed in my Decision.

[13] The applicant submits that I ignored inconsistencies in the notes prepared by Dr. D’Souza and the nurse’s notes, particularly in relation to the applicant’s discharge. Once again, this issue was raised before me at the hearing and addressed in my Decision. I found that there was no inconsistency between the more specific note by Dr. D’Souza that the applicant discharged himself against medical advice, as recorded on Dr. D’Souza’s chart, and the more general note by the nurse simply stating that the applicant was discharged. I see no reason to change this finding.

[14] The applicant takes issue with my having described him as a 62 year old man, when he was 67 years old at the time of the hearing. In this regard, I note that at the time of the events at issue in this proceeding, the applicant was 62 years of age.

[15] The applicant takes issue with my discussion of the evidence regarding the applicant’s glucose level. Whether or not the applicant has a glucometer that gave him the reading that he testified to in his evidence, the medical evidence of Dr. D’Souza, which I accept, is that based on the tests administered at the hospital and the medical research as discussed in my Decision, the applicant’s glucose level could not have been that high within that timeframe.

[16] The applicant states that he did not make the statement in his evidence attributed to him at paragraph 15 of my Decision that he had no choice to leave the hospital because if he took the Ventolin, he might fall down again whether as a result of the influence of alcohol or his condition. My notes of the evidence indicate that this is precisely what the applicant said in his evidence.

[17] The applicant submits that I ignored the inadequacies in Dr. D’Souza’s clinical notes, and further submits that any such inadequacies should not redound to Dr. D’Souza’s benefit. In this regard, the applicant relies upon material that was not before me at the hearing, including the decision of the Health Professions Appeal and Review Board dated March 7, 2007 and Dr. D’Souza’s letter to the College of Physicians and Surgeons dated November 28, 2005.

[18] Section 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as it existed at the time the Board’s decision was issued on March 7, 2007 stated:

No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.

[19] On this basis, I ruled that the Board’s decision and letter provided to the College by Dr. D’Souza for the purpose of the proceeding before the Board were not admissible into evidence before me. In his reconsideration request, the applicant has not provided any basis in law to establish that this ruling was in error.

[20] In any event, I have reviewed the material submitted by the applicant, and note that the only criticism of Dr. D’Souza’s record-keeping relates to the extent of his documentation of the discharge, and specifically that Dr. D’Souza had not documented that the applicant left against medical advice as well as he could have. It is otherwise noted that there was no basis to doubt Dr. D’Souza’s clinical assessment that the applicant did not meet the criteria for admission to a hospital bed.

[21] I had the opportunity to hear the oral evidence of the parties, as subjected to cross-examination, and to assess their respective credibility, which does not appear to have been part of the Board’s process. For all of the reasons set out in my Decision, I preferred the evidence of Dr. D’Souza over that of the applicant, including Dr. D’Souza’s evidence that the applicant was discharged against medical advice. While Dr. D’Souza’s documentation of the discharge may not have been done as well as it could have, I see no reason to change my assessment of credibility in this case.

[22] The applicant submits that I failed to have regard to an alleged inconsistency in the evidence that Dr. D’Souza visually re-assessed the applicant on numerous occasions during his stay in the emergency department. While the applicant ties this statement to Dr. D’Souza’s November 28, 2005 letter to the College, which was not before me, this statement is consistent with the oral evidence given by Dr. D’Souza at the hearing, which basically was that the applicant was in a room near to the nurses’ station, from which Dr. D’Souza could see him during the course of his stay. I do not find any inconsistency arising out of this evidence.

[23] The applicant states that I prohibited cross-examination of Dr. D’Souza on his letter to the College dated November 28, 2005, but alleges that I nonetheless relied upon the November 28, 2005 letter to support and corroborate Dr. D’Souza’s evidence. The applicant specifically makes reference to paragraph 35 of my Decision. It is correct that I ruled that Dr. D’Souza could not be cross-examined on the November 28, 2005 letter, due to s. 36(3) of the Regulated Health Professions Act as it existed at the time. It is not correct, however, that I relied upon the content of this letter, as it was not before me. Rather, the statements made in paragraph 35 of my Decision are based upon the oral evidence given before me by Dr. D’Souza.

[24] In his reconsideration request, the applicant takes issue with my discussion and characterization of his state of intoxication at the time and the impact this may have had on his perceptions. This issue was canvassed in the evidence and submissions before me at the hearing, and thoroughly reviewed in my Decision. I see no basis to alter my findings in this regard.

[25] The applicant submits that I was unreasonably prejudicial to his complaint when I noted that his oral evidence that Dr. D’Souza did not take a history from him is belied by Dr. D’Souza’s records. My finding in this regard is confirmed by Dr. D’Souza’s notes, which can only have come from taking the applicant’s history.

[26] The applicant submits that there is an inconsistency in Dr. D’Souza’s evidence that he concluded the applicant was intoxicated, and his evidence that the applicant didn’t appear agitated, wasn’t sweating or in horribly laboured breathing. I fail to understand the inconsistency here. The latter evidence of Dr. D’Souza refers to symptoms that might be related to an asthma attack. The evidence around alcohol consumption is that Dr. D’Souza smelled alcohol when he entered the room with the applicant, that the applicant denied drinking, that a test was performed indicating that the applicant had been drinking, and this was later raised by Dr. D’Souza with the applicant.

[27] The applicant takes issue with my statement in paragraph 25 that Dr. D’Souza spent 10 minutes in his initial visit with the applicant. At that point in my Decision, I was merely relating what Dr. D’Souza’s evidence had been at the hearing, and was not making a finding.

[28] Finally, the applicant takes issue with my assessment of credibility and my preference for Dr. D’Souza’s evidence. The issue of credibility was reviewed extensively in my Decision, and I see no basis to change my finding in this regard.

[29] The applicant has not brought forward any established jurisprudence with which my Decision is inconsistent, nor any Tribunal procedure with which my Decision is in conflict.

[30] For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.

Dated at Toronto, this 30^th^ day of November, 2010.

“signed by”

Mark Hart

Vice-chair