Villella v. Regional Municipality of York Emergency Medical Services Branch, 2011 HRTO 1247

Human Rights Tribunal of Ontario

BE T W E E N:

Jessey Villella

Applicant

-and-

The Regional Municipality of York Emergency Medical Services Branch,

Ben Thompson and Joseph Neumayer

Respondents

A N D B E T W E E N:

Jessey Villella

Applicant

-and-

The Regional Municipality of York Police Services Board

and Vernon Ward

Respondents

A N D B E T W E E N:

Jessey Villella

Applicant

-and-

Her Majesty the Queen in Right of Ontario

as represented by the Ministry of Health and Long-Term Care

Respondent

RECONSIDERATION DECISION

Adjudicator: Dale Hewat

Date: June 29, 2011

Citation: 2011 HRTO 1247

Indexed as: Villella v. Regional Municipality of York Emergency Medical Services Branch

1On January 5, 2011 the Tribunal issued its Case Resolution Conference Decision in this Application Villella v. Regional Municipality of York Emergency Medical Servcies Branch, 2011 HRTO 25, dismissing this Application on the basis of abandonment and abuse of process. The applicant has asked the Tribunal to reconsider its Decision.

THE REQUEST FOR RECONSIDERATION

2The Request for Reconsideration provides the following grounds as to why the Tribunal should reconsider its Decision:

a. there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier

b. You were entitled to notice, but through not fault of your own, did not receive notice of the proceeding or a hearing

c. the decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance

d. other factors exist that outweigh the public interest in the finality of Tribunal decisions

3The applicant makes a number of submissions in support of his request for reconsideration based on all of the above-noted grounds. The applicant’s representative claims that the applicant did not receive the Tribunal’s letter dated November 10, 2010 which indicated that I would be adjudicating the hearing of November 16, 2010. The applicant’s representative submits that had he been informed that Vice Chair Hart would not be presiding at the hearing, that the applicant would have attended at the hearing on his own behalf.

4The applicant takes issue with how the Tribunal has communicated with him and states that communication has been inconsistent varying from mail, courier and email sometimes resulting in delay of information or not receiving information. The applicant’s representative claims that he was out of the country until the end of January 2011 and did not know about the January 5, 2011 Decision dismissing the Application. The applicant’s representative also insists that nothing was delivered by courier to him the first week of January 2011.

5The applicant’s representative claims that he was assisting the applicant as “his father” and not as a paralegal. He states that I showed bias towards him and the applicant and their non-attendance at the hearing on the basis that he is a paralegal. He further notes that one of the counsel for the Region of York Police Services did not attend the hearing and no mention of his absence was made in the Decision. The applicant’s representative argues that all parties should be treated equally and that because of my comments about his duties as a paralegal, not only should the Reconsideration decision be made by another Vice-Chair or Member of the Tribunal, but also, the Decision should be set aside and a new hearing should be scheduled before a new Vice-Chair or Member other than me or Vice-Chair Hart.

6The applicant also submits that he was not contacted following his non-attendance at the hearing on November 16, 2010 nor was he afforded 30 days to explain his absence. At the same time, the Request for Reconsideration states that the Tribunal was made well aware in advance of the hearing that the applicant’s representative could not attend the hearing on November 16, 2010.

7Under section 45.7 of 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.

8The Tribunal’s Rules Governing Section 53(5) Applications provide that any party may request reconsideration of the Case Resolution Conference Decision in accordance with the Rules of Procedure For Transitional Applications under Sections 53(3) and 53(5) of the Code. Rule 25 provides:

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.

9Reconsideration is a discretionary remedy which gives the Tribunal the jurisdiction to reopen and reconsider its own decisions when appropriate. 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.

10In this case, the applicant’s submissions do not support the grounds upon which he relies to demonstrate that reconsideration of the Decision should be made. The January 5, 2011 Decision dismissing the Application was made following a series of communications, Case Assessment Directions and Tribunal Interim Decisions denying the applicant’s 3 adjournment requests of the November 16, 2010 hearing. The applicant was also reminded of his responsibility to file documents and submissions in support of his case and his adjournment requests, which he never did. The applicant, like the respondents, was expected to attend the hearing. The last request for an adjournment filed by the applicant was on November 15, 2010, one day before the scheduled hearing. The request made no reference to the applicant not being available to attend the hearing on November 16, 2010. The Tribunal’s Interim Decision, 2010 HRTO 2267, denying this last adjournment request, was emailed to the applicant and his representative and the other parties on November 15, 2010 which again provided notice that the hearing on November 16, 2010 would take place as scheduled.

11Given the constant communication from the applicant’s representative as late as the eve before the November 16, 2010 hearing, the expectation was that the applicant knew he was required to attend at the hearing. There was no indication even as late as November 15, 2010 or on the day of the hearing that the applicant would not be in attendance. On this basis, there was no reason to provide the applicant with further time to provide an explanation for his absence on November 16, 2010. Furthermore, while the applicant’s representative claims that he advised the Tribunal that he would not be able to attend the November 16, 2010 hearing, he was given an opportunity prior to the Tribunal’s Interim Decision of November, 2010 HRTO 2183, to clarify his reasons in support of the adjournment request but none was given.

12The applicant’s claim that, he would have attended the hearing on November 16, 2010 had he known that Vice-Chair Hart would not be the assigned adjudicator is not a valid reason to justify reconsideration of the Decision. Whether or not the applicant received the November 10, 2010 Tribunal correspondence which noted that I would be the assigned adjudicator, is not relevant to his obligation to attend the November 16, 2010 hearing. All of the applicant’s adjournment requests were denied and therefore he was required to attend the hearing as scheduled, if he wished to continue pursuing his application, notwithstanding which Vice-Chair or Tribunal Member was assigned to hear the case.

13The applicant’s concerns about inconsistencies in how the Tribunal communicated with him and his representative also do not form a basis upon which to reconsider the Decision. I find that the applicant received all of the Interim Decisions denying the adjournment requests and therefore had notice that the hearing was proceeding as scheduled on November 16, 2010.

14I also find no basis to support the allegations of bias raised in this request or any reason why this Request for Reconsideration should not be reviewed by me. First, the argument that I showed bias because I failed to mention that one of York Region Police legal counsel did not attend the hearing has no relevance to the applicant or his representative’s failure to attend. The respondent York Region Police Services did attend the hearing and was represented by one counsel from its legal department rather than two.

15Secondly, while the applicant’s representative argues that he was not licensed as a Paralegal in the Province of Ontario when these applications commenced, he was a licensed Paralegal with the Law Society of Upper Canada during the fall of 2010 leading up to the hearing on November 16, 2010. Given that status, it is expected that he is familiar with the Tribunal’s Rules, requirements and jurisprudence and the responsibilities that follow in pursuing a claim of discrimination. Regardless of his paralegal status and assuming that he was representing the applicant only as “his father”, neither the applicant or his representative have been treated differently than any other party in this or any Application. At paragraph 22 of the Decision, the applicant was reminded of all the responsibilities of parties appearing before the Tribunal whether they are represented or not (see Ouwoulis v. New Locomotion, 2009 HRTO 335). Further, the Application was also dismissed on the basis of an abuse of process because of the conduct of the applicant’s representative and not simply because of his status as a licenced Paralegal.

16The Request for Reconsideration is dismissed.