HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Salvador Vizcaya

Applicant

-and-

University of Toronto (University College), Robin Morgan,

Sylvia Bashevkin and Ken Aucoin

Respondents

RECONSIDERATION DECISION

Adjudicator: David A. Wright

Date: April 27, 2010

Citation: 2010 HRTO 916

Indexed as: Vizcaya v. University of Toronto

[1] The applicant seeks reconsideration of the Tribunal’s Decision in this matter, reported at [2010 HRTO 7](https://www.minicounsel.ca/hrto/2010/7). The applicant failed to attend the hearing and gave notice of his inability to attend only the business day before. The Tribunal directed that he provide medical evidence indicating whether he was unable to attend the hearing and indicating when such inability arose. The Tribunal held that the medical note provided did not confirm a medical reason for the applicant’s non-attendance at the hearing, indicate the physician’s opinion as to when the inability to attend the hearing arose, or explain when the applicant would be able to attend a hearing. Accordingly, the Application was dismissed as a result of the applicant’s failure to attend the hearing and the absence of exceptional circumstances justifying this.

[2] The applicant has filed a Request for Reconsideration. He claims there are new facts or evidence that could potentially be determinative of the issues and that could not reasonably have been obtained earlier, that the Decision is in conflict with established case law or Tribunal procedure, the proposed reconsideration involves a matter of general or public importance, and other factors exist that outweigh the public interest in the finality of Tribunal decisions. He has enclosed a new letter from his physician that reads as follows:

On December 08, 2009, my patient had a sleep study. The result of this test was a diagnosis of severe obstructive sleep apnea, with mild to moderate oxygen de-saturation during sleep.

This condition can result in exacerbation of mood disorders, learning and memory problems, and multiple negative effects on his physical and mental health.

It would certainly be a valid medical reason why he missed his tribunal on December 07, 2009. It is medically necessary that his tribunal be rescheduled.

[3] The Request for Reconsideration is dismissed, both because to continue these proceedings would be an abuse of process and because the factors cited do not justify reconsideration under the Tribunal’s case law.

ABUSE OF PROCESS

[4] Parties and representatives before the Tribunal are entitled to be treated with courtesy and respect in Tribunal proceedings, by the Tribunal and by other parties and representatives. This leads to a corresponding duty on parties to conduct themselves in accordance with these values. In Cochrane v. Workplace Safety and Insurance Board, [2010 HRTO 913](https://www.minicounsel.ca/hrto/2010/913), the Tribunal described this duty as follows:

Parties to a Tribunal application are engaged in a dispute which has been brought before the justice system. Before the Tribunal, as in courts and other tribunals, each side is entitled to access these dispute resolution processes, and may make submissions supporting their point of view. The Tribunal’s process provides access to a fair and neutral decision maker, who decides the application based upon his or her findings of facts and law as they apply to a particular case.

It is understandable that parties may have strong feelings about the events that gave rise to the dispute. They may disagree strongly with the submissions made by each other, be upset about the fact that the matter is before the Tribunal, or disagree with decisions made by the adjudicator. Parties and their representatives are required, however, to conduct themselves in the Tribunal’s process with courtesy and respect for each other and the Tribunal. While it is proper to express disagreement with another party’s submissions or evidence, it is never acceptable to descend into personal insults, the use of uncivil language, or discriminatory comments.

[5] Throughout this process, including in his Request for Reconsideration, the applicant has not complied with these requirements. In a letter to the applicant dated May 4, 2009, sent as a result of improper materials filed by the applicant, the Tribunal’s Executive Director advised the applicant that he could not refer to counsel or any party by a name or description other than his or her proper name, use profane language, refer to physical violence or death, or make lewd or sexual references. The applicant agreed to comply with these requirements.

[6] The applicant’s Request for Reconsideration makes statements about the respondents and their counsel that are insulting and threatening. It also insults and threatens the Tribunal and its adjudicators. The applicant’s language is vulgar and inconsistent with the principles of equality and respect on grounds protected in the Code. This language is not acceptable for submissions in the Tribunal’s quasi-judicial process and is inconsistent with the undertaking given. I will not reproduce these submissions in this public decision, as a result of their offensive nature.

[7] In view of the history of the applicant’s conduct in this matter, to allow this matter to be reconsidered would lead to an abuse of process and be unfair to the respondents. It would not be appropriate to consider granting this discretionary remedy in these circumstances. Accordingly, the Request for Reconsideration is dismissed.

MERITS OF THE RECONSIDERATION REQUEST

[8] Even if the Request were to be considered, there is no basis to grant the reconsideration. The information could have been obtained earlier and, in any event, the new physician’s letter does not address one of the central issues of concern to the Tribunal, the applicant’s failure to give more advance notice of his inability to attend. There is nothing inconsistent with Tribunal jurisprudence or of sufficient importance to override the public interest in the finality of Tribunal decisions.

COSTS

[9] The respondents seek costs based upon the egregious conduct of the applicant. The Tribunal does not have jurisdiction to award costs: see Dunn v. United Transportation Union, Local 104, [2008 HRTO 405](https://www.minicounsel.ca/hrto/2008/405). This Request is dismissed.

Dated at Toronto, this 27^th day of April, 2010.

“Signed by”

David A. Wright

Interim Chair