Goodridge v. Toronto Police Services Board, 2011 HRTO 2208

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Greg Goodridge

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto Police Services Board,

Anthony Piazza and Maria Perry

Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: December 7, 2011

Citation: 2011 HRTO 2208

Indexed as: Goodridge v. Toronto Police Services Board

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2011 HRTO 1759 dated September 27, 2011, which dismissed this proceeding as abandoned due to the applicant’s failure to appear at the continuation of the hearing scheduled for September 22, 2011.

2On September 30, 2011, the applicant filed a Request for Reconsideration of the Tribunal’s Decision.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”) provides as follows:

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.

4Under 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. The 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).

5The 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.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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.

7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to a proceeding have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

8The Tribunal’s Rules of Practice dated January 31, 2008, which apply to this proceeding, provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 102 of these Rules 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.

9As a result, I need to determine whether the material filed by the applicant in support of his request for reconsideration satisfies any of the criteria set out in Rule 102. The applicant relies upon the criteria identified in Rule 102(a) and (d).

10As previously indicated, this proceeding was dismissed as abandoned due to the applicant’s failure to appear at the continuation of the hearing scheduled for September 22, 2011. As I stated in my Decision at paras. 11 to 13:

11The respondents requested that this proceeding be dismissed as abandoned, on the basis that the complainant was aware of the scheduled hearing date, had indicated his availability for the hearing, and had not provided any reason or excuse for his failure to appear. It was noted that on previous occasions when the complainant had been unable to appear for scheduled hearing dates due to incarceration, he had understood his obligation to communicate this to the Tribunal and the parties and had done so. The respondents also raised concern about the fact that they had made significant efforts to make arrangements for a large number of witnesses to attend on the three scheduled hearing dates, such that adjourning this matter yet again would not be appropriate.

12I agree. This matter has a long history which has been documented in a number of prior Interim Decisions. The underlying facts date back to 2003 and 2005. Previously scheduled hearing dates have needed to be adjourned on several occasions due to the complainant’s circumstances. In my view, it would not be appropriate to adjourn this matter yet again when the complainant has received notice of the scheduled hearing dates, has indicated his availability for those dates, and has failed to appear without explanation or excuse.

13It is a complainant’s responsibility and obligation to provide evidence in support of the allegations he has made, and for the respondents to be afforded a proper and full opportunity to test his evidence by cross-examination. Due to the complainant’s failure to appear for the hearing, the ability of the respondent Board to conduct its cross-examination of the complainant has been frustrated. In such circumstances, in my view, it would not be appropriate for me to proceed with the hearing in the complainant’s absence and rely on the evidence he has given to date and thereby put the respondents in the position of being compelled to respond to allegations which they have not had a proper and full opportunity to challenge.

11At para. 13 of my Decision, I further stated:

. . . if the complainant has some compelling and exceptional reason to explain his failure to appear for the scheduled hearing, this matter can be raised by way of a Request for Reconsideration under the Tribunal’s Rules, which would need to be filed within 30 days. If such a request were to be filed, it would need to be supported by evidence to support the complainant’s explanation for his failure to appear.

12As stated in my Decision, the hearing in this matter commenced on June 2, 2011 and the continuation of the hearing was scheduled to proceed, on agreement of all parties including the complainant, on September 22, 23 and 28, 2011.

13On September 26, 2011 at 4:35 p.m., the complainant sent e-mail correspondence to the Tribunal stating that he had been informed that I had dismissed this matter as abandoned. In this correspondence, the complainant states that he did not and does not abandon his complaint. This correspondence did not come to my attention prior to the issuance of my Decision on September 27, 2011.

14In this correspondence, the applicant states that he was unable to attend the scheduled hearing due to illness. He states that he was quite ill and bed ridden and unable to communicate with or contact the Tribunal at any time during his illness prior to his e-mail on September 26, 2011 at 4:35 p.m.

15In his Request for Reconsideration dated September 30, 2011, the complainant expands upon the reason for his failure to attend the scheduled hearing. He states that he was very ill and bed ridden with what appeared to be some kind of food poisoning or flu and that he was still ill as he prepared his reconsideration request. He states that during the time from September 20 to 24, 2011, he was bed ridden and unable to communicate by way of fax or e-mail during this time. He states that with his reconsideration request, he has included a doctor’s note that attests to his being ill, bed-ridden and unable to communicate for a period of time covering the hearing date on September 22, 2011. He states that this doctor made a home visit to his house, and that as of the date of his reconsideration request, he was still unable to leave his house due to the same illness. The applicant asserts that he had a disability as a result of this illness within the meaning and protection of the Code.

16The Request for Reconsideration attaches a handwritten note from a Dr. P. Reichman dated September 27, 2011. The note is on a form with the heading “MedVisit – Doctors Housecall Service”, which I accept supports the applicant’s statement that Dr. Reichman saw him at his home. This note states in its entirety:

Greg Goodridge was assessed Sept 27^th with a flu-like gastroenteritis starting Sept 20^th. He states he was bed-ridden / unable to contact anybody for the first 4 days. He remains weak and should be able to return to work after this week.

17The complainant subsequently provided a prescription for medication (Amoxicillin) written for him by Dr. Reichman on September 27, 2011.

18The complainant’s Request for Reconsideration was shared with the other parties, and submissions in response were requested. The Commission supports the complainant’s request. His request is opposed by the respondents.

19The respondents note that the complainant was not hospitalized, nor did he see a doctor until one week after the alleged onset of his illness and five days after the scheduled hearing day. The respondents note that the physician’s note does not stipulate that the complainant was unable to use a telephone, but merely recounts what the physician had been told by the complainant about his inability to communicate. The respondents state that not only did the complainant fail to attend the scheduled hearing, he failed to advise the parties in advance that he would be unable to attend. As a result, the respondents submit that the complainant’s circumstances and his supporting documentation do not fall within the compelling and extraordinary circumstances contemplated by the Tribunal’s Practice Direction on Reconsideration.

20The respondents note that the complainant has demonstrated an understanding of Tribunal procedure, including how to request an adjournment when necessary, on several past occasions. They note that he has communicated with the Tribunal and the other parties by e-mail, fax and telephone. For example, when the complainant was incarcerated at the time of previously scheduled hearing dates, he notified the Tribunal and the parties promptly by fax of his unavailability for the hearing. It is also noted that when the Tribunal was canvassing the parties regarding their availability for continuation dates, the complainant contacted counsel by phone to confirm his availability.

21The respondents state that, according to his submissions in support of his reconsideration request and the note from the physician, the complainant fell ill on September 20, 2011. Therefore, the respondents submit that between September 20 and 22, 2011, the complainant could have contacted the Tribunal and the parties in advance of the scheduled continuation days to request an adjournment, but failed to do so. The respondents note that the complainant does not provide any explanation in his materials for why he could not have made a telephone call to the Tribunal or to the parties regarding his illness. Further, despite the fact that he had access to a physician who could visit his home, the respondents note that the complainant waited until September 27, 2011, some five days after the scheduled hearing day and one week after the alleged onset of his illness, to seek medical attention.

22With regard to the doctor’s note, the respondents state that this note is short and general, and does not portray the complainant’s illness as a serious one requiring hospitalization. It merely states what the complainant reported to this doctor, as opposed to a medical diagnosis indicating the complainant’s inability to make contact by fax, phone or e-mail.

23The respondents rely upon this Tribunal’s case law in support of their opposition to the complainant’s reconsideration request. For example, in McIntyre v. Loblaw Companies, 2011 HRTO 941, the applicant failed to attend the scheduled hearing and later supplied the Tribunal with a doctor’s note stating that he had the flu and was unable to attend. The applicant in McIntyre had contacted the Tribunal to request an adjournment two weeks prior to the scheduled hearing based on his chronic medical conditions and that he had the flu. The adjournment request was denied as the applicant had not explained why having the flu on December 20, 2010 would prevent him from participating in a hearing scheduled for January 7, 2011. The Tribunal left a voicemail message for the applicant on January 6, 2011 confirming that the hearing was proceeding on the following day. Later that same day, the applicant left a voicemail message for the Tribunal stating that he could not attend the hearing because he was sick and for other reasons.

24The applicant in McIntyre failed to appear for the scheduled hearing. As a result, the Tribunal issued an Interim Decision (2011 HRTO 65) requesting a detailed written explanation from the applicant regarding his failure to appear for the hearing. The applicant provided a form letter from his doctor stating that he was unable to work due to illness from January 3 to 7, 2011 and identifying the illness as acute viral illness. By Decision dated February 17, 2011 (2011 HRTO 355), the Tribunal dismissed the Application due to the applicant’s failure to provide an adequate explanation for his failure to attend the hearing, on the basis that the applicant had not provided medical confirmation of the condition that allegedly prevented him from attending or why any illness he may have had would have prevented him from participating in the hearing either in person or by phone. This Decision was upheld on reconsideration (2011 HRTO 941).

25The respondents also rely upon this Tribunal’s decision in Caster v. George Brown College, 2009 HRTO 1881. In that case, the applicant failed to attend the scheduled hearing. The day after the scheduled hearing day, the applicant left voicemail messages for the Tribunal stating that she had been too ill to travel and had a doctor’s note to support this. She requested that the hearing be re-scheduled. The Tribunal issued an Interim Decision directing the applicant to provide an explanation for her failure to attend the hearing, together with supporting medical documentation. The applicant sent a letter stating that she had been unable to attend the hearing as she was ill with the flu. This was accompanied by a doctor’s note from the day after the scheduled hearing day, stating that the applicant had been seen that day for flu symptoms which had caused her to miss an appointment on the previous day.

26The Tribunal held that this was not sufficient to explain her failure to attend the hearing. It was noted that the applicant had not contacted the Tribunal either prior to or even on the day of the hearing to indicate that she would not be attending, and the doctor’s note did not explain why the applicant would have been unable to do so. As a result of this and other non-compliance with her obligations under the Tribunal’s Rules, the application was dismissed.

27As an example of a situation where it was held not to have been appropriate to dismiss an application due to the applicant’s failure to appear at the hearing, the respondents cite Magda v. Jarosynski, 2010 HRTO 2194. The evidence provided by the applicant in support of her reconsideration request in that case indicated that she had been taken by ambulance to the emergency department twice on the day before the hearing, and again on the afternoon of the hearing day itself. The medical documents indicated that on the day of the hearing, the applicant had been found unconscious on her apartment floor, although it was unclear how long she had been unconscious. The Tribunal granted the reconsideration request on the basis that it was satisfied that the applicant had been unable to attend the hearing due to a serious medical condition.

28Returning to the instant case, in his submissions in reply, the complainant states that he is still awaiting a full letter from the doctor who had examined him at his home to further elaborate on his illness and the circumstances which caused him to miss the scheduled hearing days. It has now been over a month since these reply submissions were filed and over two months since the issuance of my Decision stating that any reconsideration request would need to be supported by evidence to support the complainant’s explanation for his failure to appear, and no further medical documentation has been provided apart from the handwritten note of September 27, 2011 and the prescription filled out that same day.

29The complainant states that in speaking with this doctor, the doctor stated that his reference to “flu-like symptoms” in the handwritten note was just a general term that he used, because the symptoms the complainant exhibited were consistent with and very similar to food poisoning. The complainant states that the doctor also told him that he believed that the complainant could also be suffering from a serious dental infection. As a result, the complainant states that it was actually food poisoning and a dental infection as well that were the reasons for his illness. The complainant states that both illnesses are consistent with his symptoms and are capable to rendering a person totally incapacitated, as he was. As previously indicated, no medical documentation has been provided to confirm this.

30With regard to the respondents’ submission that the complainant failed to contact the doctor until well after the alleged onset of his illness, the complainant states that it would have been impossible for him to have contacted the doctor while he was incapacitated. He states that if he could have contacted the doctor, he also could have contacted the Tribunal as well, which he states that he was unable to do. With regard to the respondents’ submission about his failure to contact the Tribunal or the parties in the two days prior to the scheduled hearing day to advise of his illness, the complainant states that this ignores the fact that he was incapacitated. With regard to the respondents’ submission that the doctor’s note largely repeats what the doctor was told by the complainant, the complainant submits that it has always been the case that a doctor relies upon what he is told by a patient.

31A proceeding before this Tribunal is a serious legal proceeding which entails obligations on all parties, including a complainant. One of those obligations is to show up for scheduled hearing days. There is no doubt that there have been many occasions at this Tribunal where hearing days have needed to be adjourned and re-scheduled due to illness or injury to a party, counsel or even a witness, where the injury or illness prevents the person affected from effectively participating in the hearing process. But even then, there are certain obligations that a person affected by such an illness or injury has to this Tribunal and to the other parties to the proceeding. There is an obligation to contact this Tribunal and the other parties at the earliest possible time to advise of the illness or injury and the need for an adjournment. Where possible and certainly where requested, there is an obligation to provide medical evidence to support that the person so affected has a serious illness that prevents them from participating in the hearing. This is so because the other parties will have gone to considerable inconvenience and expense to arrange to prepare for and to attend the hearing on the scheduled hearing days and to arrange for their witnesses to be present to testify. The Tribunal itself also expends resources to assign an adjudicator and hearing space for the proceeding, which is otherwise denied to parties involved in other Tribunal proceedings.

32In the instant case, the only medical evidence before me is that on September 27, 2011, five days after the scheduled hearing day and seven days after the alleged onset of this illness, the complainant was assessed by a doctor as having a “flu-like gastroenteritis”. While the complainant has stated that he believes he was suffering from food poisoning and a dental infection, no actual medical evidence has been submitted to the Tribunal to support this. While the complainant states that this illness started on September 20, 2011 and prevented him from attending the hearing on September 22, 2011, there is no actual medical evidence to support these assertions, as he was not assessed by a doctor until September 27, 2011.

33The complainant states that he was bed-ridden and so incapacitated by his illness that he could not seek medical attention at an earlier time and also could not contact the Tribunal or the other parties at any time prior to the end of the business day on September 26, 2011 to advise of his inability to attend the hearing or to explain his failure to do so. However, there is no actual medical evidence provided to support this assertion.

34I accept that there may be circumstances, such as in the Magda case where the applicant was unconscious and taken to a hospital emergency department on the hearing day, where a person may be so incapacitated by an illness or injury that they are unable to contact the Tribunal or the other parties. But I am far from satisfied that those circumstances exist in this case. The complainant was not unconscious from September 20^th up to and including the hearing day on September 22^nd. He was not hospitalized as a result of any illness. Indeed, there is no medical evidence to indicate that the complainant actually suffered from a serious medical condition. At its highest, the medical evidence is suggestive that the complainant may have had a flu-like gastroenteritis during this period of time. If that is the case, I appreciate that such an illness can be debilitating and that the applicant may have been spending much of his time resting and may have found it difficult to leave his house.

35What I am not prepared to accept, in the absence of supporting medical documentation, is that an illness of such a nature was so incapacitating to the complainant that he was unable to communicate his inability to attend the hearing by any means to the Tribunal or the other parties, or that he was unable to seek medical attention at an earlier time. Nor do I find the medical evidence provided by the complainant sufficient to support that he was actually unable to participate in the hearing on September 22, 2011, given that he was not medically assessed until five days later.

36In these circumstances, I am not satisfied that the complainant has provided a compelling and extraordinary reason to explain either his failure to attend the hearing on September 22, 2011 or his failure to contact the Tribunal or the other parties in advance of the hearing or even on the morning of the hearing itself to advise of his illness and inability to attend.

37With regard to the complainant’s submission that he was suffering from a disability within the meaning of the Code, I note again that the only medical evidence before me is that the complainant was assessed as having a flu-like gastroenteritis. Having a normal ailment such as the flu has been held not to be a sufficient basis to support a finding that a person has a disability within the meaning of the Code: see Ouimette v. Lily Cups, (1990), 1990 CanLII 12497 (ON HRT), 12 C.H.R.R. D/19; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27, [2000] 1 SCR 665 at para. 82.

38In making his reconsideration request, the complainant has relied upon Rule 102(a), which requires that there be new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. In my view, this ground for reconsideration relates to the merits or substance of the case, rather than to an issue such as a party’s failure to appear for a scheduled hearing. Accordingly, in my view, this ground for reconsideration is not available to the complainant in this case.

39The appropriate ground for reconsideration in a case of this nature is, in my view, Rule 102(d), which requires that other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions. This ground for reconsideration is, in my view, appropriately interpreted in the context of this Tribunal’s Practice Direction of Reconsideration, which requires that compelling and extraordinary circumstances exist to overcome the significant public interest in the finality of Tribunal decisions. For the reasons that I already have articulated above and consistent with the approach taken in this Tribunal’s case law, I find that the complainant has not provided sufficient or adequate evidence to support that compelling or extraordinary circumstances explain his failure to appear for the scheduled hearing on September 22, 2011 or his failure to advise the Tribunal or the other parties in advance of the scheduled hearing day of his inability to participate due to illness.

40While the complainant has made extensive submissions regarding the public importance of the allegations he has raised in this proceeding, this is not in my view a sufficient basis to overcome his failure to establish that compelling and extraordinary circumstances explain his failure to appear for the hearing or advise the Tribunal or the parties in advance.

41I am prepared to accept that the complainant did not intend to abandon this proceeding. Nonetheless, due to his failure to appear on the scheduled hearing day and his failure to advise the Tribunal and the other parties in advance, I find that this proceeding nonetheless should be dismissed.

42For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.