HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Samuray Diler
Applicant
-and-
Cambridge Memorial Hospital and Edward Matti
Respondents
RECONSIDERATION decision
Adjudicator: Naomi Overend
Indexed as: Diler v. Cambridge Memorial Hospital
1The applicant filed her Application on March 9, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination on the basis of place of origin, citizenship and disability in the provision of services by the respondent Cambridge Memorial Hospital. Dr. Matti was added as a respondent at the request of Cambridge Memorial Hospital (the “Hospital”). The Tribunal issued a Decision on December 11, 2009, 2009 HRTO 2143, dismissing this Application on the basis of delay.
2On December 12, 2009, the applicant filed a Request for Reconsideration (the “Request”) asking the Tribunal to reconsider its Decision. Subsequent to that initial Request, the applicant filed three additional Requests and numerous emails in support of her Requests.
3A respondent is not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal. In the circumstances, the Tribunal did not deem it necessary to seek submissions from the respondents.
Analysis
4Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request that 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.
5The applicant states the Request is based on, among other grounds, new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. The new facts/evidence might be summarized as follows:
She received her medical file from the Health Professions Review and Appeal Board on August 5, 2009 and was only able to read it “recently” because it contained many pages and made her sick to read it. This file contained “central evidence” to her case;
Likewise, she received her pharmacy records “very recently;”
Before she could complain about her doctor giving her high dosages of medication because of her nationality, the applicant “had to know” her doctor’s answers to the College about why he administered the dosages she received. The applicant is not clear about when she received that information, but does make reference to receiving a College investigation letter in April 2008;
Certain information came to the attention of the applicant “later,” such as the ethnicity of her doctor, who the CEO of the hospital was, and what he was saying about her. This information combined to give the applicant “the big picture” on which she founded her Application;
In one of their meetings, the doctor touched his crotch, for reasons that were unclear to the applicant. Now the applicant knows that the doctor did this because he did not like her nationality;
On January 25 or 26, 2010, the applicant had a dream about the doctor laughing at her. When she awoke, she remembered that the doctor laughed at her because he read in her file that her ex-boyfriend had forced her to smoke marijuana, which resulted in her being hospitalized for three days. She now knows that the reason the doctor laughed and/or was happy about the fact that marijuana smoke bothered her was because she was Turkish; and
A dentist at the respondent hospital did a poor quality filling on her mouth, which is further evidence of the type of health care professionals hired by the hospital.
6The applicant also asserts that, despite the Tribunal’s finding that her delay was not incurred in good faith, that she is, in fact “a good faith person” and is prepared to present further evidence of that, including providing a criminal record check. She takes the position that the Tribunal misunderstood her contention that she is an assertive individual, in that she will only complain when it is safe to do so. She did not feel it was safe for her to file an application until she was “okay, safe, secure and healthy.” Finally, the applicant submits that the public interest is central to her case in that “[m]entally sick people should be protected from harm.”
7The Tribunal’s Practice Direction on Reconsideration gives guidance on how the Tribunal interprets its reconsideration powers. It 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. [Emphasis added.]
8Despite filing a large volume of material on reconsideration, the applicant has failed to set out any “compelling or extraordinary circumstances” on which the Tribunal might reconsider her case. The new “facts or evidence” to which she refers fail to address the issue of delay in filing her Application, which was the only basis on which her Application was dismissed. The Application was not dismissed on the basis of the merits of the applicant’s case or the sufficiency of her evidence and so whether she is able to now recall further “evidence” is irrelevant to her Reconsideration Request.
9The Request for Reconsideration is denied.
Dated at Toronto, this 19^th^ day of February, 2010.
“Signed by”
Naomi Overend
Vice-chair