B.C. v. London Police Services Board, 2011 HRTO 2049

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

B.C. Applicant

-and-

London Police Services Board and Murray Faulkner Respondents

RECONSIDERATION DECISION

Adjudicator: Eric Whist Date: November 9, 2011 Citation: 2011 HRTO 2049 Indexed as: B.C. v. London Police Services Board

1This is a Request for a Reconsideration (the “Request”) filed by the applicant, in respect of a Decision dated September 2, 2011, 2011 HRTO 1644, (the “Decision”). In my Decision I dismissed the Application on the basis of delay under section 34(1) and 34(2) save for the incident involving the personal respondent, Chief Murray Faulkner, on October 22, 2008 which was dismissed on the basis that it did not constitute an incident of discrimination.

REQUEST FOR RECONSIDERATION

2The Request is detailed and lengthy and the applicant makes a number of arguments. The Request submits that the I made a fundamental error in determining the last incident of discrimination and when the one year time limit for filing the applicant’s Application began and that I wrongly dismissed the Application for delay. The Request submits that I did not adequately consider some of the reasons the applicant provided for not filing his Application earlier including the fact that he was waiting for a decision from the London Police Services Board and that the applicant had a health condition. The Request argues that the I did not properly assess some of the evidence that was adduced at the hearing held on May 31, 2011 or properly consider some of the submissions that were made during the course of the hearing. The Request provides a number of specific examples where, in the applicant’s opinion, I made factual errors or did not appropriately consider or weigh the evidence that I had before me and submits that a number of the findings and conclusions in the Decision are inaccurate. The Request refers to further evidence that the applicant believes is significant.

3The Request states that I should have rendered a decision in relation to the respondent’s request to dismiss the Application under section 45.1 of the Code.

4In sum, the Request is principally arguing that the Decision mistakenly determined the date of the last incident of discrimination, that the Decision’s assessment of the evidence adduced at the hearing and the submissions of the parties is flawed and that as a consequence I have wrongly decided the applicant’s Application.

5Under section 45.7 of the Ontario 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 a final decision in accordance with the Tribunal’s Rules. The most relevant Tribunal Rule is Rule 26 which reads, in part, as follows:

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 and orders.

6The Tribunal has also issued a Practice Direction to provide guidance on how the Tribunal exercises its reconsideration powers (Practice Direction on Reconsideration). The Practice Direction states, in part, that:

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.

DECISION

7The applicant’s request for reconsideration is denied. The applicant has not shown that under the criteria outlined in Rule 26 the Decision dismissing his Application should be reconsidered. The applicant’s Request is essentially based on a view that the my Decision is flawed and wrongly decided on the information that was presented at the hearing. This is not a ground for reconsideration under Rule 26. The applicant is, in effect, attempting to re-argue the case and appeal the Tribunal’s Decision. The proper means to raise such a challenge is through an application to the courts for judicial review of the Decision.

BACKGROUND

8This is an Application filed on October 22, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in the provision of services on the basis of sex.

9The Application alleges that on October 22, 2008 the personal respondent, Murray Faulkner, who was, at the time, the Chief of the London Police Service (“LPS”), stated at a public meeting that “As men we have lost our way. We fight each other; we abuse our partners; and we sexually assault our own children.” The Application alleges that this statement reveals a severe bias against men. The Application contends that Chief Faulkner’s bias and his directing role as the Chief of Police explains why the LPS did not lay charges against his former mother-in-law whom he alleged was responsible for the sexual assault of his daughter in 2003 or lay charges against his ex-wife’s family for vandalizing his car in 2005. The Application alleges that Chief Faulkner’s statement and the repeated failure of the LPS to lay these charges are related and should be considered to be a series of incidents of discrimination based on sex.

10The Application appears to further allege that the LPS Domestic Violence Procedure which is used to guide how the LPS responds to incidents of domestic violence discriminates against men and has been implemented in a discriminatory manner. The Application refers to the LPS accusing men of being perpetrators of domestic violence without supporting evidence while not arresting women including those who have committed mischief by making false statements to the police. The Application refers to the fact that the mother and grandmother of his daughter were not charged and to Chief Faulkner’s comments of October 22, 2008 as evidence of the LPS implementing its Domestic Violence Procedure in a discriminatory manner.

11The applicant made three formal complaints to the LPS pursuant to the Police Services Act R.S.O. 1990, c. P.15 (“PSA”). The first complaint was made in March 2007. It alleges that the LPS’s investigations into the alleged sexual assault of the applicant’s daughter and the property crimes involving the applicant’s car were inadequate and complains about the failure of the LPS to lay charges in relation to these crimes against the applicant’s ex-wife and family. This complaint does not allege that the LPS’s actions were discriminatory. The complaint was found to be unsubstantiated by the LPS. The applicant requested that the Ontario Civilian Commission on Police Services (“OCCPS”) review the LPS decision. The OCCPS upheld this decision. The second and third complaints were filed on March 12, 2009. The second complaint alleges that the LPS’s Domestic Violence Procedure discriminated against men. The applicant requested a review of this decision by the LPS Board who found that the complaint was unsubstantiated in a decision dated October 22, 2009. The applicant did not seek a further review of this decision. The third complaint primarily alleges that Chief Faulkner made a discriminatory comment at the community consultation meeting held on October 22, 2008. The LPS Board also found that this complaint was unsubstantiated in its decision dated October 22, 2009.

ANALYSIS

12In my view the applicant’s Reconsideration submissions are essentially that the Tribunal did not appropriately assess the evidence before it nor the parties’ submissions, particularly those of the applicant. In my view the concerns identified by the applicant are not grounds for reconsideration under Rule 26 but rather are properly the basis for an application for judicial review. Accordingly, I will not address the specific instances cited in the Request the applicant believes demonstrate how I either misunderstood or inappropriately weighed the evidence before me or did not properly consider the submissions made in relation to the evidence before me.

13It should be noted that some of the applicant’s submissions about the merits of the case are ones that the applicant could have made at the hearing but did not or are further arguments or theories of the case the applicant has introduced in his Request to support his Application.

14The applicant’s Request does refer to evidence that was not before me with a view to furthering the applicant’s contention that I wrongly decided the Application, for example, further details about the events of October 22, 2008 when Chief Faulkner made his comments. Rule 26.5(a) states that the Tribunal can reconsider a decision when it is satisfied that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. However, there is nothing to suggest that the evidence referred to by the applicant could not have reasonably been obtained earlier and presented as part at the applicant’s hearing. I am not satisfied that there is any basis under Rule 26(5)(a) to reconsider the Tribunal’s Decision.

15Rule 26.5(c) states that reconsideration can be granted in cases where a decision is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance. The applicant suggests that I have mistakenly identified the last incident of discrimination and that this should be the decision of the LPS Board on October 22, 2009 and not Chief Faulkner’s comments on October 22, 2008. The applicant suggests that I should have considered the date of the LPS Board decision when determining whether there was a delay in the filing of the Application. This is, perhaps, most properly an issue to be raised by means of an application for judicial review. However, I have considered whether my failure to consider the LPS Board decision as an incident of discrimination is in possible conflict with Tribunal jurisprudence and as such might be the basis for a reconsideration. I find this is not the case.

16The applicant’s allegations of discrimination are that the LPS failed to properly investigate allegations he made about his ex-wife’s family, failed to lay criminal charges and that Chief Faulkner’s comments on October 22, 2008 were both discriminatory in of themselves and revealing of why the London Polices Services had not responded to his earlier complaints about the alleged conduct of his ex-wife’s family. The applicant complained under the PSA to the LPS Board about the LPS’s actions the implementation of the Domestic Violence Procedure and Chief Faulkner’s public comments of October 22, 2008. I am of the view that the LPS Board’s decision not to uphold the applicant’s complaint about his allegations of discrimination is not in itself a further incident of discrimination that has a bearing on the issue of delay. The applicant’s complaint to the LPS Board was part of an effort to address and remedy the alleged incidents of discrimination involving the LPS and Chief Faulkner that form the basis of the Application. This assessment of how the October 22, 2009 LPS Board decision should be characterized is consistent with the Tribunal’s jurisprudence in such cases as Mafinezam v. University of Toronto, 2010 HRTO 1495, Darroch v. King (Township), 2010 HRTO 2268 and Colbeck v. Pinecrest-Queensway Community Health Centre, 2010, HRTO 1435.

17The issue of good faith was raised at the hearing and addressed in the context of the applicant’s principle submission, that he was unaware of his rights under the Code until he filed his Application. The Request focuses on other reasons for the delay in filing. The applicant repeatedly refers in his Request to having pursued his rights under the PSA and to his health as reasons for not pursuing his Application in a more timely fashion. I will note, for the applicant’s benefit, that the Tribunal has determined that it is not enough for a party who must establish good faith to say that he or she was waiting for another legal proceeding to unfold (see Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670) and that while the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that the disability was so debilitating to prevent an applicant from pursuing his or her legal rights under the Code (see, for example, Reid v. Ontario March of Dimes, 2009 HRTO 2207).

18I am not satisfied that the present case involves a matter of general or public importance. I have no doubt that the applicant perceives his case to be one that raises issues of how the LPS provides its services and that a different decision by the Tribunal in his case could oblige the LPS to change these services. However, Tribunal decisions can often lead to or require changes in respondent practices. But Tribunal decisions, even if they affect change beyond the individual circumstances of an applicant, usually do not involve a matter of general or public importance. I do not see that reconsideration in the present case is required because it involves a matter of general or public importance. I am, therefore, not satisfied that there is any basis under Rule 26.5(c) to reconsider the Tribunal’s Decision.

19Similarly, I am of the view that there are no other factors that exist in this case that outweigh the public interest in the finality of Tribunal decisions. The applicant is clearly not satisfied with the Tribunal’s Decision and finds it flawed. However, the applicant has had the opportunity to present his case before the Tribunal and I find no compelling reason to exercise my discretion under Rule 26.5(d) or any other part of Rule 26.5 to reconsider my Decision.

20For all of the above reasons the Request for Reconsideration is denied.