Villella v. Regional Municipality of York Emergency Medical Services Branch, 2011 HRTO 253

Human Rights Tribunal of Ontario

B E 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: Mark Hart Date: February 7, 2011 Citation: 2011 HRTO 253 Indexed as: Villella v. Regional Municipality of York Emergency Medical Services Branch

1This Decision addresses a Request for Reconsideration filed by the applicant on November 18, 2010 in relation to the Tribunal’s Interim Decision 2010 HRTO 1810, dated September 2, 2010, and Reconsideration Decision 2010 HRTO 2110, dated October 19, 2010.

2The Tribunal’s Interim Decision dated September 2, 2010 dismissed the Application filed against Her Majesty the Queen in right of Ontario as represented by the Ministry of Health and Long-Term Care (the “Ministry”) on the basis that there was no factual or legal foundation to support the allegations of discrimination against the Ministry, such that I found that the Application against the Ministry was not within this Tribunal’s jurisdiction.

3This Interim Decision also included case management directions whereby the parties were to file certain materials in accordance with timelines set out in the Interim Decision. Specifically, by no later than September 24, 2010, the applicant was required to serve on the respondents York EMS and York Police and file with the Tribunal a statement of all material facts that he is relying upon in support of the allegations made in his complaints that he experienced discrimination because of his race, ethnic origin, creed and sex by the police officers and/or paramedics who attended the scene. The Decision directed that these material facts should detail why the applicant believed that he experienced such discrimination, with specific details regarding the evidence he proposed to call to support his beliefs. Further dates were set for the respondents to respond to this material, and particularly to serve and file written submissions regarding their request for dismissal of the Applications pursuant to s. 45.1 of the Code and/or for failure to set out a prima facie case of discrimination, and the York Police were directed to serve and file with the Tribunal a copy of the full police investigation report. The parties also were given rights of written reply.

4Unknown to me at the time, on August 23, 2010, Vice-chair Muir already had issued a Case Assessment Direction addressing the Ministry’s request to dismiss the Application against it for failure to disclose a prima facie case of discrimination. Vice-chair Muir had made the following determination regarding this request:

The respondent has raised a substantial issue in its Request. A hearing in this and two related matters has already been scheduled to begin on November 16, 2010. The applicant has not waived his right to make oral submissions. I find that the most just, fair and expeditious manner of proceeding is to deal with this Request at the outset of the hearing in November.

5As I stated in the October 19, 2010 Reconsideration Decision, I was not aware of Vice-chair Muir’s Case Assessment Direction at the time I issued my September 2, 2010 Interim Decision. Responsibility for interim matters in this file was assigned to Vice-chair Muir. I assumed oversight of this matter while Vice-chair Muir was on vacation, and the Request for Order filed by the Ministry got onto my list of pending decisions. Vice-chair Muir completed the Case Assessment Direction in accordance with his responsibilities after he returned from vacation. However, the Case Assessment Direction was not in the file when it was reviewed by me for the purpose of rendering my decision.

6As a result, by letter dated September 20, 2010, the Tribunal advised the parties that it intended to reconsider my Interim Decision on the Tribunal’s own initiative, pursuant to Rule 25.9 of the Rules for Transitional Applications, and the parties were afforded an opportunity to make submissions regarding the Tribunal’s intention.

7By letter dated September 27, 2010, the Tribunal clarified for the parties that it was only reconsidering the September 2, 2010 Interim Decision to the extent of any inconsistency with the prior Case Assessment Direction, and accordingly, the timelines set out in the September 2, 2010 Interim Decision remained in effect and were to be complied with by the parties.

8Submissions were received from the applicant and the respondent Ministry on or before October 1, 2010.

9By my Reconsideration Decision dated October 19, 2010, I accepted and agreed with the applicant’s position that Vice-chair Muir’s Case Assessment Direction had determined that the issue of the respondent Ministry’s Request to dismiss the Application against it should be the subject of oral submissions at the scheduled hearing, and therefore that it was not open to me to subsequently determine this Request in writing. As a result, I set aside my decision to dismiss the Application as against the Ministry and directed that this issue would be determined at the hearing, and after hearing and considering the parties’ oral submissions. I also noted that, as had been stated previously by this Tribunal, all other matters addressed in my September 2, 2010 Interim Decision, and in particular the timelines set out for completion of various case management matters, remained in effect and were to be complied with by the parties.

10Section 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.

11Under 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).

12The 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.

13As 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.

14In 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 an Application 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.

15The Tribunal’s Rules of Procedure for Transitional Applications provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 25.5 of the 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.

16As 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 25.5 relied upon in support of the reconsideration request. The applicant relies upon the criteria identified in Rule 25.5 (c) and (d).

17The applicant first alleges that I was in a conflict of interest when I rendered my Decisions. In the submissions filed on his behalf on October 1, 2010 in response to the Tribunal’s notice that it was reconsidering its decision to dismiss the Application as against the Ministry, the applicant raised a bald allegation that I was in a conflict of interest but provided no details or particulars to support this allegation. Without any details or particulars, I did not feel a need to consider or address this issue in my Reconsideration Decision dated October 19, 2010, particularly as I was finding in the applicant’s favour by setting aside my decision to dismiss the Application against the Ministry and directing that this issue be determined at the hearing on the basis of the parties’ oral submissions, in accordance with Vice-chair Muir’s Case Assessment Direction.

18It was not until October 29, 2010, after my Reconsideration Decision had been issued, that the applicant’s representative for the first time provided particulars of his allegation that I was in a conflict of interest. This allegation relates to an issue raised by my former law partner regarding the conduct of the applicant’s representative, who is also the applicant’s father, in an unrelated legal proceeding. The allegation arises from a letter sent by my former partner to the applicant’s representative on August 24, 2005, prior to my appointment to this Tribunal and when I was still a partner at that law firm. I had no knowledge of or involvement in this matter while at the law firm or at any time up to and including the issuance of my Decisions in this matter, and only discovered information about this letter when I made inquiries of my former law partner following the allegations raised by the applicant’s representative on October 29, 2010.

19The applicant further alleged in his email that my extension at the law firm was and still is 226, and that my voice-mail was still active at the same Toronto firm phone number. This is not true. My extension at the law firm never was 226. At the time of my appointment to this Tribunal in September 2007, I disconnected ties with my former law firm, the law firm’s name changed from “Sanson & Hart” to “Sanson Law Office”, and the firm’s automated telephone message was changed to reflect this. If someone did dial through to my old extension, which was 224, they received a voicemail message advising of my appointment to the Tribunal, that I was no longer involved in the law firm, and not to leave any voicemail messages for me.

20These circumstances do not support the applicant’s allegation that I was in a conflict of interest at the time I rendered my decisions in this matter in September and October 2010. First, there was no actual conflict of interest, as I had no knowledge of or involvement with the matter relating to the applicant’s representative dating back to 2005 and this did not play any role in either of my Decisions. Second, there is no reasonable appearance of a conflict of interest, as the alleged basis for the conflict occurred some five years prior to my Decisions and some three years following my appointment to the Tribunal.

21Conflicts of interest are governed by this Tribunal’s Code of Conduct. In relation to prior professional relationships, the Tribunal’s Code of Conduct provides for a “cooling off” period of one year. Paragraph 18 of the Code of Conduct provides as follows:

18. A member will not normally be eligible to conduct a mediation or adjudication involving a party or representative with whom s/he was formerly in a significant professional relationship until a period of one year has elapsed from the termination of the relationship.

In my view, this provision has no application to the instant case. The applicant’s representative is not a person with whom I was formerly in a “significant professional relationship”. In fact, I had no knowledge of or involvement in any relationship with him at all. In any event, as my Decisions were released some three years after the date of my appointment and some five years after the incident upon which the applicant bases his allegation of a conflict of interest, this is well beyond the one year period.

22In his reconsideration Request, the applicant also relies upon this alleged conflict of interest as a basis for requesting that his Request by addressed by a Vice-chair other than myself. The general practice at this Tribunal is that reconsideration requests are assigned to the Vice-chair who rendered the decision under reconsideration. As there is no support for the applicant’s allegation of a conflict of interest, there is no reason to depart from this general practice in this instance.

23The applicant alleges that on September 23, 2010 he requested clarification regarding the scope of the Tribunal’s decision to reconsider the September 2, 2010 Decision and whether it extended to the case management timelines that I had directed. He alleges that he received no response to this request. That is not true. As stated above, the Tribunal responded by letter dated September 27, 2010 to clarify that the scope of the reconsideration related to the decision to dismiss his Application against the Ministry and did not include the case management timelines.

24The applicant alleges that the submissions he filed in response to the Tribunal’s Notice of Reconsideration either were not considered or were “tossed aside”. That is not true. These submissions are expressly acknowledged in my Reconsideration Decision dated October 19, 2010, were considered by me, and I accepted and agreed with the applicant’s position that my September 2, 2010 decision to dismiss the Application as against the Ministry could not stand in view of Vice-chair Muir’s previous Case Assessment Direction.

25There are further problems with the applicant’s reconsideration Request. First, pursuant to the Tribunal’s Rules, reconsideration is only available from a final decision by the Tribunal. The only aspect of my September 2, 2010 that was a final decision within the meaning of the Rules was my decision to dismiss the Application as against the Ministry. This final decision was reconsidered by the Tribunal on its own initiative, and my decision to dismiss the Application as against the Ministry was set aside. As a result, the only aspect of my September 2, 2010 Interim Decision which was a final decision already has been reconsidered by the Tribunal on its own initiative, has been determined in the applicant’s favour, and the decision to dismiss set aside, and is not amenable to further reconsideration.

26Second, the case management timelines set out in my September 2, 2010 Interim Decision were interim and procedural directions, which under the Tribunal’s Rules cannot be the subject of a reconsideration request, as they do not constitute a “final decision”. Nonetheless, this Tribunal does have inherent jurisdiction to re-visit interim and procedural directions, and did so in this case. The applicant requested that the timelines for compliance with the case management directions be extended, and this request was granted and the timelines were extended. Nonetheless, the applicant did not comply with the case management directions.

27Third, the applicant’s Request for Reconsideration is untimely. Pursuant to the Tribunal’s Rules, a Request for Reconsideration is to be filed within 30 days of the decision to which the request relates. My decision to dismiss the Application already was reconsidered on the Tribunal’s own initiative and was set aside in my Reconsideration Decision dated October 19, 2010. My Reconsideration Decision did not extend to a reconsideration of the case management timelines and merely re-stated what the parties already had been told by the Tribunal on September 27, 2010, which was that these timelines were not being reconsidered and remained in effect. The only Decision by which these case management timelines were imposed was my Interim Decision dated September 2, 2010. If the applicant intended to request reconsideration of that aspect of my September 2, 2010 Interim Decision, the Rules required him to file a Request for Reconsideration within 30 days, which he did not do.

28Fourth, this Request for Reconsideration is moot. These matters proceeded to hearing on November 16, 2010. Neither the applicant nor his representative attended the hearing. Consequently, the Applications were dismissed by Decision dated January 5, 2011 (2011 HRTO 25) as abandoned and as an abuse of process.

29The applicant alleges that my Decisions are in conflict with established jurisprudence or Tribunal procedure, but he cites no established jurisprudence with which my Decisions are alleged to be in conflict. I further find that, while my September 2, 2010 Interim Decision was at odds with Vice-chair Muir’s Case Assessment Direction to the extent that my Interim Decision dismissed the Application against the Ministry without hearing oral submissions, this error was rectified in my Reconsideration Decision dated October 19, 2010.

30The applicant alleges that there was a conflict with Tribunal procedure in that the parties were not given an opportunity to make submissions in response to the Tribunal’s Notice that it was reconsidering my September 2, 2010 Interim Decision on its own initiative, as set out in the Tribunal’s Practice Direction on Reconsideration. This is not true. The parties were notified of their opportunity to make submissions by letter dated September 20, 2010, the scope of the Tribunal’s reconsideration was clarified in response to the applicant’s request by letter dated September 27, 2010, and the applicant did in fact file submissions on October 1, 2010 in response to the Tribunal’s notice which were acknowledged and considered by me in my Reconsideration Decision dated October 19, 2010. Accordingly, I find that the applicant has failed to establish any real or continued conflict with Tribunal procedure in this case.

31The applicant also alleges that other factors exist which outweigh the interest in the finality of decisions. In my view, for all of the reasons I have set out in my previous Decisions and in this Decision, there are no such factors which outweigh the interest in the finality of decisions.

32For all of these reasons, the applicant’s Request for Reconsideration is denied.

Dated at Toronto, this 7th day of February, 2011.

”signed by”___________

Mark Hart Vice-chair