HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Warren Jules Rill
Applicant
-and-
Beth Din of America, Ronald Warburg, and Yona Reiss
Respondents
RECONSIDERATION DECISION
Adjudicator: Mary Truemner
Indexed as: Rill v. Beth Din of America
WRITTEN SUBMISSIONS
Warren Jules Rill, Applicant ) Self-represented
1This Application was filed on July 26, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to services on the basis of race, ethnic origin and creed. The Application indicates that the last incident of discrimination took place on March 5, 2008. The Application was dismissed because the Application was filed more than one year after the most recent of the incidents to which the Application relates, and the Tribunal found that the applicant’s delay in filing his Application was not made in good faith, as required by section 34 of the Code. See Rill v. Beth Din of the United States of America, 2011 HRTO 1923, (the “Decision”). The applicant has filed a Request to Reconsider the Decision, and the respondents have elected not to respond to the Request.
2In making the Decision, the Tribunal noted in paragraph 9 that some of the reasons for the delay in filing the Application might constitute good faith given that the initial delay was related to the fact that the applicant was unrepresented and filed a s.53 Application instead of a s.34 Application. However, the Decision noted that when the Tribunal dismissed the improperly filed s.53 Application (Rill v. Beth Din of the United States of America, 2009 HRTO 593), the Tribunal indicated to the applicant the correct procedure for him to file a s.34 application, and referred him to the correct form on its website for him to complete. The Decision noted that the applicant waited more than a year after to file the present Application, even though he could have simply copied his text onto a new form. The Decision quoted the applicant’s submissions explaining the delay:
I then went to Thailand [months after the Tribunal dismissed the s.53 application and advised him how to properly file] and had a good rest. Thailand is like my heaven. I talk to very few people there and on my return I was in a much better frame of mind to once again submit a new submission. I called the HRLSC in the beginning of May on my return and spoke to an attorney… who was unable [original emphasis] to give me an appointment right away. I explained the case to her and she stated there was no rush in doing the submission and that she knew of the case.
3The Decision concluded that the applicant’s explanation for the further delay did not constitute good faith:
In his correspondence with the Tribunal, the applicant has referred to spending winters in Thailand. The Tribunal’s Decision dismissing his s.53 Application was issued at the beginning of May 2009, the beginning of summer. While the dismissal of his s.53 Application and the referral to a different process might have depressed the applicant, he does not explain why that would prevent him from simply refiling his allegations on a different form when it appears he was still in Ontario and when the Tribunal’s s.53 Decision specifically noted that he might do so. That Decision specifically noted that he might seek to file an application under section 34 of the Code “using Form 1”, and referring him to the Tribunal’s website and Registrar.
While the applicant asserts that he suffered from medical problems, he does not take the position that he was unable to function. Indeed, his arrangements and efforts that allowed him to spend the winter in Thailand demonstrate that he was able to perform tasks that go beyond copying text onto another form and filing it with the Tribunal. Even if he experienced mental disability concerns after the alleged discrimination, he has not established that he could not have pursued his rights within the timeline mandated by the Code. The applicant has failed to explain why his condition was so debilitating that it prevented him from pursuing his rights under the Code in a more timely fashion, particularly given the applicant’s travel to Thailand.
The applicant’s preferred method of communicating with the Tribunal is through email, and a review of the file indicates that he is competent in sending documents electronically. I note that he filed the Application electronically and without representation. I therefore do not consider the applicant’s absence from Canada while in Thailand, where access to the internet exists, to constitute a good faith reason for delay in filing an application under s.34 of the Code.
Analysis
4Section 45.7(1) of the Code provides that “[a]ny party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules”. The Rules elaborate on the conditions and requirements of such a request. Rule 26.1 of the Tribunal’s Rules of Procedure states that “[a]ny party may request reconsideration of a final decision of the Tribunal within 30 days from the date of the decision”.
5Pursuant to Rule 26.5, 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.
6It is also useful to consider the Tribunal’s Practice Direction on Reconsideration, which states in part:
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.
7The Tribunal has stated that a Request for Reconsideration is not an opportunity to restate or re-argue evidence already advanced and considered. See Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34. 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 set out in Rule 26.5.
8The applicant’s Request for Reconsideration indicates that the reasons for the Request are related to Rule 26.5(c) and (d), but in his details to explain why, he refers to no established case law or Tribunal procedure with which the Decision might conflict. Similarly, he does not explain why he thinks other factors exist that outweigh the public interest in the finality of decisions. Instead, he provides more details about his medical difficulties after the alleged discrimination, and more details about why his inability to obtain appropriate legal advice and representation delayed the filing of the Application and establish his good faith.
9The applicant’s initial confusion about which form to file at the Tribunal and the filing of the s. 53 Application (that he alleges was the fault of others providing bad advice) was accepted by the Tribunal in the Decision as a possible factor to establish the applicant’s good faith in trying to file on time. The Tribunal dismissed the Application, however, as noted above, after reviewing the reasons for the subsequent 14½ month delay between the Tribunal’s s.53 Decision inviting the applicant to file properly (May 7, 2009) and the filing of this Application (July 26, 2010).
10Similary, although the Tribunal dismissed the Application noting that the applicant’s medical condition did not prevent him from spending the winter in Thailand prior to filing the Application, the Tribunal does not take issue with the applicant’s position that his various medical problems made it difficult for him to file an application. The applicant has expressed some concern in his Request for Reconsideration that the Tribunal has not asked to review any medical evidence, but, even taking the applicant at his word with respect to his disability-related difficulties in creating a document or pleading, and with respect to his disability-related needs to escape the Canadian winter, the applicant’s own submissions stated that he went to Thailand for a “good rest”, choosing to go there, as opposed to other warm places, for economic reasons. From his submissions, it appears that he quietly relaxed in Thailand, and was not involved in obtaining medical treatments or procedures. In fact, he states that his psychiatric treatment in Canada was interrupted by his winter there.
11The Tribunal has consistently ruled that to find good faith in excusing delay with respect to disability-related reasons, it requires medical evidence that disability was so debilitating that it prevented the applicant from pursuing his or her legal rights under the Code. See for example Cashin v. Mount Sinai Hospital, 2011 HRTO 799; Dionne v. Toronto (City), 2011 HRTO 317; Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; and Savage v. Toronto Transit Commission, 2010 HRTO 1360.
12The applicant no doubt has challenges in participating without legal representation in any process at the Tribunal because of disability. However, he did not provide facts or evidence, prior to the Decision, that he was so medically debilitated in Thailand, or in Canada, that he was incapable of asserting his rights by filing an application, even over the internet. The facts or evidence the applicant provides now continue to fail to establish that he was so medically debilitated that he was incapable of filing his Application until he did. They do not establish good faith for the delay in filing the Application, and there is no reason for me to find them to have been unavailable prior to the Decision. He does not offer evidence or facts now, in his Request for Reconsideration, which could potentially be determinative of the case or which could not reasonably have been obtained earlier, as required under Rule 26.5(a).
13To summarize, I do not find that:
there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier;
the dismissal of the Application is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or
other factors exist that outweigh the public interest in the finality of Tribunal decisions.
14I find that the the applicant has restated or re-argued positions and evidence that he advanced in his submissions considered by the Tribunal in its Decision dismissing the Application, albeit in more detail, particularly in relation to his assertion that his medical condition contributed to his delay in filing his Application. As the Tribunal’s Practice Direction on Reconsideration states, that is not the purpose of reconsideration.
15Accordingly, the Request for Reconsideration is dismissed. Pursuant to the applicant’s Request, this Reconsideration Decision will be sent to him by email in large print. Any other requests for accommodation in accessing the Tribunal’s documents or process may be made to the Registrar as stated in the Tribunal’s Policy on Acessibility and Accommodation found on its website.
16Dated at Toronto, this 23rd day of January, 2012.
”signed by”____________
Mary Truemner
Vice-chair