Curtis v. Human Rights Tribunal of Ontario, 2010 HRTO 661

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Curtis

Applicant

-and-

Human Rights Tribunal of Ontario, Patricia Grenier, Kaye Joachim, Chris Bentley, Julian Fantino and Ontario Provincial Police, Caledon East Detachment

Respondents

RECONSIDERATION DECISION

Adjudicator: Brian Eyolfson

Date: March 25, 2010

Citation: 2010 HRTO 661

Indexed as: Curtis v. Human Rights Tribunal of Ontario

WRITTEN SUBMISSIONS BY

David Curtis, Applicant ) On his own behalf

1On November 25, 2009, the Tribunal issued its Decision in this Application, 2009 HRTO 2008, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

background

2On June 10, 2009 the applicant filed an Application under s. 34 of the Code. On September 18, 2009, the Tribunal provided the applicant with a Notice of Intent to Dismiss, indicating that it appears the Application is outside the Tribunal’s jurisdiction because:

• the allegations against the respondents Bentley, Fantino and the OPP appear to be the same or substantially the same as the subject-matter of your January 2008 complaint to the Ontario Human Rights Commission. That complaint was dismissed by the Commission in its decision made June 25, 2008. As such, this aspect of your Application appears to be barred by s.53(8) of the Code.

• if the Application against these respondents is not barred by the provisions of s.53(8) it does not appear to raise any allegations which, if proven, could amount to discrimination on the grounds you have identified;

• the allegations against the respondents Joachim, Grenier and the Human Rights Tribunal of Ontario all are with respect to the Tribunal’s adjudicative processes and its decisions dismissing your Application and refusing to reconsider that decision. The Tribunal has held on a number of occasions that “services” within the meaning of the Code does not include the outcome or decision resulting from adjudications.

The applicant was directed to provide written submissions responding to the above points and explaining why he believes the Application is in the Tribunal’s jurisdiction and he did so.

3The Tribunal’s subsequent Decision found as follows:

• As against Julian Fantino and the Ontario Provincial Police, Caledon East Division, this Application duplicates allegations set out in his previous Commission Complaint against the Ontario Provincial Police, including allegations of religious-based hate crimes, criminal collusion and false claims… The Tribunal is satisfied that the Application, as against those respondents, is barred under section 53(8), as its subject-matter is substantially the same as the subject-matter of the Complaint that the applicant previously filed with the Commission.

With respect to the respondent Chris Bentley, the Application does not make any allegations which, if proven, could amount to discrimination on the grounds identified. Accordingly, the Application as against Chris Bentley is dismissed as it is outside the jurisdiction of the Tribunal.

The allegations in the Application as against the Tribunal, Grenier and Joachim relate exclusively to the content of the Tribunal’s adjudicative decisions. The cancellation of the mediation was a direct result of an adjudicative decision determining that the s. 53(3) Application was not within the Tribunal’s jurisdiction, which was upheld on reconsideration. As these allegations are about the content and result of adjudicative decisions, the Application as against the Tribunal, Patricia Grenier and Kaye Joachim is also dismissed as outside the Tribunal’s jurisdiction.

THE REQUEST FOR RECONSIDERATION

4The main reasons provided in the Request for Reconsideration, as to why the Tribunal should reconsider its Decision, are as follows:

a. The applicant and his “elderly infirm parents” have been the ongoing victims of ongoing hate crimes.

b. The ongoing hate crimes that have been and are being committed against them are being covered up in collusion by the Ontario Provincial Police, by various governmentally-appointed individuals and government offices, including the offices of the Attorney General and the Human Rights Tribunal of Ontario.

c. The cancellation of the mediation of his Application under s. 53(3) of the Code was contrary to the Tribunal’s mandate, mission and core values, and aided an abetted the continuation of ongoing hate crimes.

d. A complaint that is within the jurisdiction of the Tribunal will not be finally determined without giving the parties an opportunity to make oral submissions. Both the present Application and his Application under s. 53(3) of the Code are within the jurisdiction of the Tribunal.

e. The Tribunal is operating in a state of conflict of interest and has withheld legally appropriate services.

DECISION

5Under section 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with the Tribunal’s Rules.

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.

6The 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). Most relevant to this Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

26.5. 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.

7The 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.

8As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen 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.

9I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

10In support of his Request, the applicant essentially repeats allegations and arguments previously submitted to the Tribunal. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.

11The applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. I am also not convinced that any findings made in the Decision are in conflict with established jurisprudence.

12With respect to his allegation that the Tribunal is in a conflict of interest, the applicant did not raise this issue when he was invited to make submissions to the Tribunal with respect to the jurisdictional issues. Rather, he raised it for the first time in his Request for Reconsideration. In general, allegations of impartiality should be raised at the earliest possible opportunity and not in a request for reconsideration. In addition, although the applicant asserts in general that the Tribunal is in a conflict of interest, he requests that the Tribunal proceed to process and deal with his Application.

13In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.