Tosh Surh v. City of Toronto, 2012 HRTO 1467

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tosh Surh

Applicant

-and-

City of Toronto

Respondent

RECONSIDERATION DECISION

Adjudicator: Brian Eyolfson

Date: July 27, 2012

Citation: 2012 HRTO 1467

Indexed as: Surh v. City of Toronto

WRITTEN SUBMISSIONS BY

Tosh Surh, Applicant ) Self-represented

1On February 17, 2012, the Tribunal issued its Decision in this Application, 2012 HRTO 348, dismissing the Application on the basis that the applicant was deemed to have abandoned the Application. The applicant has asked the Tribunal to reconsider its Decision.

background

2In a Case Assessment Direction (“CAD”) dated July 8, 2011, the Tribunal directed that a summary hearing by conference call be held to determine whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed. The CAD was delivered to the applicant by courier and not returned as undeliverable. On October 24, 2011, the Tribunal issued a Notice of Summary Hearing to the parties, indicating that a conference call hearing was scheduled for December 12, 2011, and referring to the CAD dated July 8, 2011

3At the conference call hearing on December 12, 2011, the applicant indicated that he did not receive a copy of the CAD dated July 8, 2011. The respondent consented to the matter being adjourned and rescheduled, so that the applicant could be provided with a copy of the CAD. In the circumstances, the matter was adjourned and the Tribunal re-sent the July 8, 2011 CAD and other documents to the applicant. On December 28, 2011, the Tribunal also issued a Notice of Rescheduled Summary Hearing to the parties, indicating that a conference call hearing was scheduled for February 17, 2012, at 9:30 a.m. The Notice provided the parties with the necessary information to connect to the conference call. The Notice was delivered to the applicant by regular mail at the last address provided by the applicant to the Tribunal and was not returned as undeliverable.

4The applicant subsequently filed a Request for an Order During Proceedings (“Request”), dated January 19, 2012, seeking deferral and an extension of time, requests for production and particulars, and other requests. The applicant confirmed that the Request was delivered to the respondent on February 2, 2012.

5In email correspondence to the applicant, dated February 8, 2012, Tribunal staff indicated that the applicant had mentioned adjourning the February 17, 2012 summary hearing in voice mail messages to the Tribunal. Tribunal staff advised the applicant that, if he wished to adjourn the summary hearing, he would have to make a request to the Tribunal’s Registrar, in writing, and copied to the other party, in order for the Tribunal to address such a request. Tribunal staff confirmed that, as it stood at the time, the summary hearing would be proceeding on February 17, 2012, at 9:30 a.m.

6In a CAD dated February 15, 2012, delivered to the applicant at the email address he provided to the Tribunal for contact purposes, the Tribunal directed that the applicant’s Request would also be addressed at the summary hearing on February 17, 2012.

7On February 16, 2012, the applicant delivered and filed a second Request, seeking to amend the Application, in addition to requests for deferral and an extension of time, requests for production and particulars, and other requests.

8On February 16, 2012, the respondent provided the applicant with copies of documents by email and indicated that it intended to rely on the documents at the summary hearing conference call on February 17, 2012.

9The applicant was not in attendance at the commencement of the scheduled conference call hearing on February 17, 2012. In accordance with its usual practice, the Tribunal waited until 10:00 a.m. before proceeding.

10At 10:00 a.m., the applicant was not in attendance, nor had the applicant otherwise communicated with the Tribunal to explain the failure to attend. In the circumstances, the Tribunal was satisfied that the applicant had notice of the hearing. The Application was dismissed on the basis that the applicant was deemed to have abandoned the Application.

THE REQUEST FOR RECONSIDERATION

11Under 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 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.

12The 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). Most relevant to this Decision are Rules 26.1 and 26.5 which state:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

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.

13The Tribunal’s Practice Direction on Reconsideration begins with the following statement:

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.

14As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen 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.

15In his Request for Reconsideration, the applicant relies on Rules 26.5 (a), (c) and (d) of the Tribunal’s Rules; however, for the following reasons, I find that there is nothing before me to suggest that any of the threshold criteria justifying reconsideration have been met.

16In his submissions in support of his Request for Reconsideration, the applicant states that the respondent has information requested by the applicant and has not provided it. He also baldly asserts that the Tribunal is in conflict with Tribunal procedure and case law, and is favouring the respondent.

17In my view, the applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. I am also not convinced that any findings made in the Decision are in conflict with established jurisprudence, or Tribunal procedure, or that any other factors exist that outweigh the public interest in the finality of Tribunal decisions in the present case. In my view, therefore, the applicant has not established any of the criteria in subsections (a), (c) or (d) of Rule 26.5 of the Tribunal’s Rules that would lead to reconsideration.

18Further, the applicant has provided no explanation whatsoever for why he was not in attendance at the summary hearing conference call on February 17, 2012, and there is no indication that the applicant did not have notice of the hearing.

19Considering all of the circumstances, I find that the applicant in this case has not established any of the threshold criteria justifying reconsideration.

20The Reconsideration Request is denied.