Macyshyn v. Toronto Police Services Board, 2011 HRTO 1725

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zenon Macyshyn

Applicant

-and-

Toronto Police Services Board and William Blair

Respondents

reconsideration decision

Adjudicator: Keith Brennenstuhl

Date: September 20, 2011

Citation: 2011 HRTO 1725

Indexed as: Macyshyn v. Toronto Police Services Board

WRITTEN SUBMISSIONS BY

Zenon Macyshyn, Applicant ) Self-represented

1The applicant filed a Request for Reconsideration (the “Request”) on August 19, 2011, which requested reconsideration of the Tribunal’s Decision, 2011 HRTO 1444, issued August 2, 2011, that dismissed his Application (the “Decision”).

BACKGROUND

2The applicant filed an Application under s.34 of the Human Rights Code, R.S.O. 1990. c. H. 19, as amended (the “Code”), on March 24, 2010.

3On March 1, 2011, the Tribunal issued a Confirmation of Hearing to the parties that informed them that the hearing was scheduled for July 25, 2011, at 655 Bay Street, 14th Floor, Toronto, Ontario, commencing at 9:30 a.m.

4On June 15, 2011, the applicant filed a Request for Order During Proceedings requesting an order compelling the presence of Mayor Ford and Chief Blair at the hearing. On July 11, 2011, the Tribunal issued its Interim Decision denying the Request for Order During Proceedings and confirming that the hearing was scheduled for July 25, 2011.

5On July 25, 2011, the respondents’ representatives attended at the hearing, together with their witnesses, at the time and place set out in the Confirmation of Hearing notice. The applicant did not appear at the hearing.

6On August 2, 2011, the Tribunal issued its Decision dismissing the Application as abandoned.

7The applicant now seeks Reconsideration of the Decision.

ANALYSIS

8Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. Rule 26.5 provides:

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.

9It is also useful to consider the Tribunal’s Practice Direction on Reconsideration which 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.

10It is evident that the applicant objects to the Decision. He asks that the Decision be reconsidered because “other factors exist that outweigh the public interest in the finality of Tribunal decisions” In support of his Request the applicant indicates that he was unable to attend the hearing scheduled for July 25, 2011, because he had to work instead. The Tribunal notes that the applicant did not request an adjournment of the hearing, nor did the applicant advise the Tribunal or the respondents that he would not be able to attend the hearing.

11In my view the applicant’s choice to forgo his hearing for work does not establish compelling and extraordinary circumstances for reconsideration of the Decision that outweigh the public interest in the finality of decisions.

12It is the Tribunal’s duty to dispose of applications fairly, justly and expeditiously: see section 40 of the Code and Rule 1.1 of the Rules. This duty is in relation to both applicants and respondents, who may expend considerable resources responding to human right applications as well as the public whose tax dollars fund the Tribunal. In Ouwroulis v. New Locomotion, 2009 HRTO 335, the Tribunal stated:

Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.

13In this instance we have respondents who had to spend a significant amount of money, time and resources responding to the Application and then attending, with witnesses, a hearing that the applicant failed to show up for. I am mindful that the Tribunal also expended a significant amount of resources processing the Application and organizing the hearing.

14Finally, the applicant’s failure to attend the hearing cannot be divorced from the fact that he has filed at least 11 other human rights Applications with the Tribunal that have been dismissed for delay, dismissed for no reasonable prospect of success or dismissed as abandoned.

15In these circumstances, I find that it would neither be fair, just and expeditious nor in the public interest to reconsider the Decision to dismiss the Application.

ORDER

16The Request is dismissed.