Titulescu v. Workplace Safety and Insurance Board, 2012 HRTO 1498

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

George Titulescu

Applicant

-and-

Workplace Safety and Insurance Board and

Workplace Safety and Insurance Appeals Tribunal

Respondents

RECONSIDERATION DECISION

Adjudicator: Alan G. Smith

Date: August 1, 2012

Citation: 2012 HRTO 1498

Indexed as: Titulescu v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS

George Titulescu, Applicant

Ed Morgan, Counsel

BACKGROUND

1This is an Application filed July 28, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of place of origin, citizenship and ethnic origin. This decision deals with the applicant’s Request for Reconsideration of the Tribunal’s decision dismissing the application because it was untimely.

2In section 7(d) of the Application (“If you are applying more than one year from the last event, please explain why”), the applicant wrote “July 21, 2010”. The latest incident mentioned in the narrative of the Application is contained in the document entitled “Supplementary Statement” in which the applicant states:

…I had a few unbelievable telephone calls with a person from Workplace Safety and Insurance Appeals Tribunal called Daniel S. Revington, who spoke with me so rudely. I have the possibility to find the cassette of the recording of the calls, which happened on 2008.

3On July 12, 2011, the Tribunal Registrar sent a Notice of Intent to Dismiss to the applicant which noted that the Application appeared to be outside of the Tribunal’s jurisdiction (power to decide) because, among other things, it was filed more than one year after the last alleged incident of discrimination. The Tribunal invited the applicant to provide written submissions to explain the delay in filing.

4On July 21, 2011, the applicant sent the Tribunal submissions on the timeliness issue. The applicant stated in part:

In the third paragraph of your letter it states that the Application was filed more than one year after the last incident of discrimination, which is false because I abandoned my file from the Ontario Superior Court of Justice on July 21, 2010, just one week before I filed my case at the Ontario Human Rights Tribunal…

5On July 26, 2011, the Tribunal issued a Decision, 2011 HRTO 1602, dismissing the Application on the basis that, given the absence of evidence that the delay in filing the application was incurred in good faith, the Application did not satisfy the requirements of section 34 of the Code and was therefore outside the jurisdiction of the Tribunal. The applicant filed a Request for Reconsideration (the “Request”) of that Decision on April 24, 2012.

6In his Request, the applicant appears to argue that the Decision should be reconsidered because he was unable to understand the nature and importance of the time limit contained in s. 34 of the Code.

ANALYSIS

7Section 45.7 of the Code provides the Tribunal with authority to reconsider decisions. Further to its power to make rules, the Tribunal has issued Rules governing Requests for Reconsideration. Most relevant to this Reconsideration Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision [emphasis added].

8I note that, on the basis of delay alone, the Tribunal may deny the Request. See der von Felix v. International Financial Data Services (Canada), 2010 HRTO 362, Liu v. Country Herbs, 2011 HRTO 1166, and Hardman v. Grey County Housing, 2012 HRTO 1142.

9The applicant was required to file his Request within 30 days of the Tribunal’s August 26, 2011 Decision. However, the applicant did not submit this Request for Reconsideration until April 24, 2012, almost seven months beyond the deadline.

10A request for reconsideration filed beyond the 30-day deadline will not be granted unless the Tribunal determines that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

11In the Request for Reconsideration the applicant provides his affidavit in which he indicates that he continues to experience, “frequent seizures, constant muscle and joint pain, headaches, vision impairment, mobility issues and other physical ailments”. He attributes these symptoms to a 1993 workplace accident. The applicant also provided medical documentation as attachments to the affidavit. I reviewed the documentation for evidence of anything that might have impaired the applicant’s ability to act in a timely manner with regard to Tribunal deadlines. I note that a specialist physician’s report in March of 1996 indicated that anti-epileptic medication had reduced the frequency of the applicant’s seizures to once a month. The latest medical documentation provided by the applicant is a psychiatric report of September 1998 which found that the applicant had suffered a “personality change”.

12The most recent medical documentation that the applicant has provided is now some 13 years old. There is nothing addressing the state of the applicant’s health since 1998. In any case, the applicant fails to explain how, for example, the diagnosed “personality change” prevented him from filing the Request for Reconsideration within the timeline stipulated in Rule 26.

13As such, I find that the applicant has not established that the delay in filing the Request was incurred in good faith.

14In addition, I find that even if the request had been made in a timely manner, the grounds for seeking reconsideration do not meet the reconsideration criteria set out in Rule 26. Rule 26.5 provides that 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;

(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;

(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

15In the Request the applicant indicates he is relying on Rule 26.5 (d) as the ground for reconsideration, arguing:

Until recently, Mr. Titulescu was unrepresented by legal counsel and did not receive any formal legal advice as to the options available to him. His disability prevented him from adequately representing himself….

Unfortunately, some of the very human rights difficulties that prompted his Application in the first place caused him to delay bringing the Application and prevented him from adequately addressing the dismissal of the Application last August.

16The Tribunal has issued a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008). The Tribunal’s Practice Direction on Reconsideration states, in part, the following with respect to the Tribunal’s power to grant reconsideration:

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.

17With regard to the fact that the applicant only recently obtained legal counsel, the Tribunal has noted that many, if not most, applicants before the Tribunal are not represented. The fact that an applicant did or did not have counsel is usually not material to a determination of good faith pursuant to Code s. 34(2). In this case, the applicant’s general assertions about being unrepresented for a period of time are not sufficient to establish a reasonable explanation for his failure to file the Application within the limitation period. See, N.M. v. Ottawa-Carleton District School Board, 2012 HRTO 282, and Gordon v. The Manufacturers Life Insurance Company, 2012 HRTO 476.

18The applicant advises in his affidavit that the last alleged incident of discrimination pursuant to Code s. 34 (1) is October 11, 2007, which was the date the Workplace Safety and Insurance Tribunal released a reconsideration decision dealing with the applicant’s claim.

19Further to my findings in paragraphs 11 to 13, above, there is no medical documentation before the Tribunal that provides a basis to conclude that the applicant was suffering from any type of disability that would have prevented him from pursuing a complaint in the one year period ending October 2008.

20Based on my review of the reconsideration request, I do not find that any of the criteria supporting reconsideration of the original decision have been established. The applicant has not identified any new facts or evidence that could potentially be determinative of the delay issue and that could not reasonably have been obtained earlier. The applicant’s request has not established that other factors exist that outweigh the public interest in the finality of Tribunal decisions.

21In conclusion, I find that the applicant failed to file his Request for Reconsideration in a timely manner and has not established the existence of any of the criteria in Rule 26.5 that would lead to reconsideration of the Tribunal’s Decision.

ORDER

22The Request for Reconsideration is dismissed.