HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Carl Smith
Applicant
-and-
Windsor Police Service
Respondent
RECONSIDERATION DECISION
Adjudicator: Jim Dimovski
Indexed as: Smith v. Windsor Police Service
WRITTEN SUBMISSIONS
Carl Smith, Applicant ) On his own behalf
1In correspondence dated September 21, 2009, the applicant requested an "appeal" of the Tribunal Decision, 2009 HRTO 1440 (the "original decision"). On October 5, 2009, the applicant filed a Request for Reconsideration pursuant to section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the "Code"). Another Request for Reconsideration regarding the same Tribunal Decision, with additional evidence attached, was filed on December 7, 2009. I considered all of the applicant's various submissions.
2The original decision determined that on February 20, 2007, the applicant was not subjected to discrimination on the basis of disability, race and/or place of origin in the course of his apprehension under the Mental Health Act, R.S.O. 1990 c. M. 7 by the respondent.
3Rule 25.5 provides that 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.
4The Practice Direction on Reconsideration issued by the Tribunal suggests the following regarding the Tribunal's power to grant reconsideration:
(1) Decisions of the Tribunal are generally considered final and are not subject to appeal.
(2) Reconsideration is a discretionary remedy and there is no right to have a decision reconsidered by the Tribunal.
(3) 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.
(4) Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.
5The applicant submits that his Request is based upon Rule 25.5(a) and (c).
6After reviewing his submissions, I deny the applicant's request for reconsideration. My reasons are set out below.
Rule 25.5 (a): New Facts or Evidence?
7With regard to Rule 25.5(a), the applicant has submitted evidence, some of which has formed part of the record. No explanation was provided, however, as to why this evidence, except for MRI report from Dr. Annisette, could not have been obtained earlier and submitted at the Case Resolution Conference ("CRC" or "hearing"). Accordingly, I find such evidence is not admissible at this stage of the process.
8In any event, I have reviewed the additional documentation submitted and have determined that, even if it had been entered into evidence at the hearing, the conclusion of the original decision would not have been different.
9For ease of reference, the evidence submitted by the applicant can be divided into two parts: medical and non-medical evidence. With regard to the non-medical evidence, the applicant included, among other things: a blank Application for Accessible Parking Permit; Direct Deposit Invoices from the applicant's insurer; a St. Clair College Statement of Account; other Windsor Police Service Occurrence Reports regarding different incidents involving the applicant's alleged threats to others; his correspondence to the Canadian Mental Health Association and the Superior Court of Justice, among other documents.
10I note that much of the evidence submitted by the applicant did not relate or was not relevant to the determination made by the original decision. For example, the applicant provided WPS Occurrence Reports related to incidents other than the one addressed by the original decision. The applicant made reference to this evidence as support for his allegations that the threats of violence towards others attributed to him was actually a calculated effort by the respondent and others to discrediting him. Further, he writes that he was subjected to "psychological rape" and subjected to economic hardships. As evidence, he referred to his insurance deposit forms and his educational costs. After reviewing his submissions and evidence, I did not find that any of it would have been relevant in determining whether his apprehension on February 20, 2007, violated the Code. Accordingly, I do not find that this evidence is sufficient enough to have been determinative at the original hearing had it been considered.
11As noted, the applicant also provided medical evidence for my review. Some of this evidence had already been entered into the record at the original hearing, i.e., medical reports from Dr. S. Balogh. Anything entered into the record at the original hearing is not new evidence and thus not an appropriate reason to reconsider the original decision since it was considered at the original hearing.
12The applicant also submitted medical evidence that was not considered by the original decision. In his September 2009 correspondence, the applicant wrote that the original decision dismissed his case because "my injuries are NOT due to police brutality". The applicant asked: "If not because of police brutality, then HOW was I injured?". In his October 2009 Request, he linked his injuries with the excessiveness of the force used to apprehend him. He wrote: "Notice, how all the professionals tend to focus on mental disability and minimize or outright deny all my injuries". The evidence he provided included results of medical investigations such as MRI reports, clinical reports and generic medical information.
13The original decision did not deny the applicant had injuries flowing from his apprehension. The decision, however, determined that the applicant's injuries did not flow from a violation of the Code. Instead, it was determined that his apprehension was due to his actual behaviour and that it was not excessive. Accordingly, since the applicant's injuries did not flow from a violation of the Code, no remedy for those injuries can be obtained under the Code.
14In any event, the applicant claims brute and excessive force caused his injuries. None of the medical evidence submitted by the applicant supports that his injuries were caused by excessive force. Additionally, there is no medical opinion to support the applicant's pain from his apprehension "metatasized to full[-]blown bodily-pain". In my view, the original decision appropriately focused on the reasons for the apprehension and there was no persuasive medical opinion which would have supported that the nature of his injuries were compatible with an apprehension which violated the Code.
Rule 25.5(c): Conflict with established Jurisprudence or Tribunal Procedure?
15Under Rule 25.5(c), a reconsideration request must satisfy that an original decision is in conflict with established case law or Tribunal procedure and that the matter involves a matter of general or public importance.
16As noted above, the applicant simply seems to re-argue his case which is not an appropriate focus for a Request for Reconsideration.
17The applicant also referred to Ramoutar v. Toronto Housing Corporation, 2009 HRTO 181. The applicant simply cited the case and made no submissions to support its relevance. In any event, I find no relevant basis to support the case reference is significant for reconsideration in this matter.
18After reviewing his submissions, I do note certain allegations which could be appropriate for consideration under Rule 25.5. These allegations include:
He "was restricted to questioning in the order in which the respondents sat. PC [first name omitted] Godwin, PC DeYoung, and PC John Kovacic, in that order. She [PC Godwin] was out of the room before the first half hour". He stated he wanted to cross-examine her. He also writes he was denied the opportunity to show PC Godwin's "posture in the ambulance while [he] was being brutually crushed...";
He was not allowed to ask PC Bojtos any questions "nor see the face of [his] assailant";
He also claimed the Member was generally biased and treated him like a criminal and not the victim he was.
19For clarification, the applicant has referred to KH as his representative. At the hearing, the applicant represented himself and conducted his Application on his own behalf. KH was present and mentioned in the original decision but she did not testify or ask questions.
20I am satisfied that the applicant was not prevented from cross-examining the respondent's witnesses. The applicant, as is also evident from his submissions, believes that PC Godwin was in the ambulance during his transport to Hospital after his apprehension. In his cross-examination of PC Godwin, he repeatedly asked variations of the same question, trying to elicit an admission from her that she was in the ambulance. After PC Godwin affirmed several times during her testimony that she was not in the ambulance, the applicant was stopped. He was not permitted to repeatedly ask the same question or ask her to confirm her posture in the ambulance. Further, the applicant was asked whether he had any other questions for PC Godwin before she was permitted to leave with his leave.
21In my view, the applicant objects to the manner he cross-examined PC Godwin. I am not satisfied, that he was prevented from examining the witness fully, as such I am not persuaded that his submissions are sufficient to grant a reconsideration.
22Additionally, the applicant states that he was not "allowed" to examine PC Bojtos. PC Bojtos did not appear at the hearing because he was not a named personal respondent nor was he summoned to appear at the hearing. As such, he was not obliged to testify and as a result, I do not accept that the applicant was not allowed to cross-examine PC Bojtos.
23Finally, the applicant generally accuses the Member of bias or blaming the victim. A review of his submissions supports that his allegation is grounded on the fact that I chose to accept the respondents evidence rather than to his. The original decision, however, provided reasons for preferring the respondent's evidence. Accordingly, I am not persuaded by the applicant's allegations that the original decision was not based on a review of the evidence.
24Accordingly, since the applicant has failed to satisfy the requirements of Rule 25.5, his Request for Reconsideration is dismissed.
Dated at Toronto, this 18th day of February, 2010.
"Signed by"
Jim Dimovski
Member