Tshidinda Lukusa v. Toronto Police Service and Toronto Police Services Board, 2012 HRTO 2054

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tshidinda Lukusa

Applicant

-and-

Toronto Police Service and Toronto Police Services Board

Respondents

RECONSIDERATION DECISION

Adjudicator: David A. Wright

Date: October 26, 2012

Citation: 2012 HRTO 2054

Indexed as: Lukusa v. Toronto Police Service

WRITTEN SUBMISSIONS

Tshidinda Lukusa, Applicant

Self-represented

1The applicant seeks reconsideration of the Tribunal’s Decision, 2012 HRTO 1198, dated June 18, 2012, dismissing this Application as abandoned and cancelling the hearing scheduled to begin on June 25, 2012. The Application was dismissed after the applicant failed to file the required pre-hearing documentation, and failed to comply with or respond to a Case Assessment Direction (“CAD”) dated June 7, 2012, reminding him of his obligation to do so and warning him that a failure to take action within seven days could result in the dismissal of the Application.

2In his Request for Reconsideration, filed on June 25, 2012, the applicant relies upon all four grounds in Rule 26.5, which reads as follows:

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.

3The obligation to file a list of witnesses, a summary of their evidence, and a copy of the documents intended to be relied upon, no later than 45 days prior to the hearing, is set out in Rules 16 and 17 of the Rules of Procedure and summarized in the Guide to Preparing for a Hearing before the Human Rights Tribunal, available on the Tribunal’s website. It is also clearly set out in the Notice of Hearing sent to all parties. Each Notice of Hearing includes the particular date by which pre-hearing steps must be taken.

4When one or both parties do not comply with their obligations, the Tribunal generally issues a CAD directing them to do so within seven days. The CAD states that a failure by the applicant to file required materials within this time may result in the dismissal of the Application, and/or that a failure by the respondent to file required materials may result in the Tribunal taking any or all of the steps in Rule 5, including not permitting the respondent to call evidence at the hearing. The CAD quotes from C.D. v. Wal-Mart Canada, 2010 HRTO 426 at para. 7, which sets out the importance of witness statements in the Tribunal process, and states that an applicant or individual respondent who intends to be the only witness and testify only to what is set out in the Application or Response need simply send a letter confirming this. The quotation reads as follows:

The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent.

[emphasis added]

5Ensuring the filing of documents and witness statements, or a confirmation that a party will rely only on the Application or Response, promotes fairness and the effective use of hearing time. In addition, it reduces the number of cases that are dismissed as abandoned at the hearing when the applicant does not attend. The Tribunal’s experience prior to instituting this practice was that a large number of parties who failed to comply with their pre-hearing obligations did not attend hearings. Where the party not attending was the applicant, this meant that the respondent prepared for merits hearings, had witnesses present, and travelled to the hearing site, only to have the Application dismissed at the outset as abandoned. The Tribunal has no powers to award costs.

6In this case, the Case Assessment Direction dated June 7, 2012, was sent to the parties by e-mail, on that date, in English and French. The first paragraph stated:

This Case Assessment Direction alerts the applicant to the fact that he has failed to comply with the obligations under Rules 16 and 17 to deliver to every other party and file with the Tribunal a witness list, witness statements, and copies of documents the party intends to rely upon no later than 45 days prior to the hearing. There are serious consequences for the case if this step is not taken, set out at the end of this Case Assessment Direction.

7The last paragraph stated:

DIRECTION

The applicant is directed to immediately file the materials required under Rules 16 and 17, and if the applicant has not done so within 7 days of the date of this Case Assessment Direction, the Application may be dismissed as abandoned.

8In support of his Request for Reconsideration, the applicant makes various arguments. He emphasizes his opinion that his Application is well founded. He states that he sent materials for the case prior to the mediation and that it seemed as though the Case Assessment Direction asked for the same materials he had filed in his Application and Reply. He suggests that he spoke to the Tribunal by telephone shortly after the abandonment decision and stated that his Application should not be abandoned so easily, given that all documents were already in the Tribunal’s possession, and noting that he is not a Crown prosecutor. The Tribunal has confirmed that its records suggest that the only telephone contact with the applicant following the CAD came after the abandonment decision.

DECISION

9The Request for Reconsideration is dismissed. As the Tribunal stated in Ouwroulis v. New Locomotion, 2009 HRTO 335 at paras. 4-7:

Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.

[emphasis added]

10The applicant did not comply with the obligations set out in the Notice of Hearing. He also took no action following the CAD, which clearly alerted him that a failure to do so could result in the dismissal of his Application. The applicant suggests that he did not respond because he had already provided the required materials through his Application and Reply. The quotation from the C.D. case in the CAD made it clear that in such circumstances, a party need merely send a letter confirming there is nothing else they intend to rely upon. The applicant could also have contacted the Tribunal to inquire what he should do in such circumstances, if the CAD was unclear. While the applicant is self-represented, and entitled to some latitude, there is no reason he could not have communicated with the Tribunal or taken steps to comply with his obligations upon receiving the CAD.

11Reconsideration is only granted in exceptional circumstances: see Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14. In this case, there are evidently no new facts or evidence (Rule 26.5(a)), no lack of notice (Rule 26.5(b)), and no conflict with established jurisprudence or procedure (Rule 26.5(c)). Given the applicant’s failure to comply with his obligations, and failure to heed a clear warning that not doing so could lead to the dismissal of his Application and the resulting cancellation of the hearing, there are no circumstances that outweigh the important interest in the finality of Tribunal decisions.

12The Request for Reconsideration is dismissed.