Forde v. Avon Maitland District School Board, 2012 HRTO 592

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffrey Forde

Applicant

• and-

Avon Maitland District School Board and Geoffrey Williams

Respondents

AND B E T W E E N:

Jeffrey Forde

Applicant

-and-

Avon Maitland District School Board, Debra Gill, Jim Sheppard

and Geoffrey Williams

Respondents

AND B E T W E E N:

Jeffrey Forde

Applicant

-and-

Elementary Teachers’ Federation of Ontario,

Jim White, Mary Bricco, Merlin Leis, and Victoria Reaume

Respondents

AND B E T W E E N:

Jeffrey Forde

Applicant

• and-

Avon Maitland School Board and David Higgins

Respondents

AND B E T W E E N:

Jeffrey Forde

Applicant

-and-

Avon Maitland District School Board and Geoffrey Williams

Respondents

AND B E T W E E N:

Jeffey Forde

Applicant

• and-

Human Rights Legal Support Centre and

Her Majesty the Queen in right of Ontario

Respondents

RECONSIDERATION DECISION

Adjudicator: Ian R. Mackenzie

Date: March 22, 2012

2010-07285-S; 2011-08501

Citation: 2012 HRTO 592

Indexed as: Forde v. Avon Maitland District School Board

WRITTEN SUBMISSIONS BY

Jeffrey Forde, Applicant ) Lois Forde and self-represented

1The applicant has filed a Request for Reconsideration in accordance with section 45.7 of Part IV of the Human Rights Code, R.S.O. 1990, C. H.19, as amended (the “Code”) of the following decisions: 2009 HRTO 506; 2011 HRTO 1075; 2011 HRTO 1389; 2011 HRTO 1594; and 2011 HRTO 1664. The Applicant has also requested a reconsideration of an administrative decision to close an Application file (2011-08133-I) because of a failure to complete his Application. The Applications at issue arose out the employment of the applicant with Avon Maitland District School Board (“Avon Maitland”). The applicant’s union, the Elementary Teachers Federation of Ontario (ETFO), and a former counsel were named as respondents in one of the applications. He also filed an Application against the Human Rights Legal Support Centre (HRLSC) and the Government of Ontario in connection with his representation in one of the applications.

2This Reconsideration Decision addresses all of the above-listed decisions.

3The Tribunal was advised by the applicant on March 7, 2012 that he was asking the Ontario Human Rights Commission (OHRC) to intervene in the Reconsideration Requests. The Tribunal did not receive a Request to Intervene from the OHRC. Accordingly, it is not necessary to address the submissions of the applicant on his request to the OHRC.

background

4In 2009 HRTO 506, the Applications against Avon Maitland, Geoffrey Williams, Debra Gill and Jim Sheppard were withdrawn as a result of a settlement. The applicant now alleges that the settlement was obtained under duress.

5In Tribunal File No. 2011-08133-I, the applicant filed an incomplete Application on February 16, 2011. On August 24, 2011, he was advised in a letter from the Tribunal that the Application was not complete and could not be processed by the HRTO. The letter identified the questions that were required to be answered and stated that the completed Application was to be returned to the Tribunal by September 13, 2011. The applicant was advised that if he did not provide an answer to the specified questions by the specified time, his file would be closed. The applicant requested an extension of time to file the missing information on October 30, 2011. He was given an extension until December 23, 2011. The Tribunal wrote to the applicant on February 24, 2012 and closed the file administratively.

6In 2011 HRTO 1075, the summary hearing addressed whether there was a reasonable prospect of success that the applicant could demonstrate that Avon Maitland and David Higgins intended to reprise against him by making an error in his reference letter (para. 9). The adjudicator concluded as follows (paras. 29-36):

The applicant has not demonstrated any basis for an intentional error in dates in the letter of reference. The respondents have freely admitted that a mistake was made. This full admission goes some way to demonstrating that there was no intent to deceive. Since the error is easily explained and could be clarified by a prospective employer, it is not logical to accept that the respondents made an intentional error.

However, even if the applicant could demonstrate at a full hearing that the error was intentional, he still needs to be able to demonstrate that the intent of the respondents was to reprise against him because of his Application under the Code. The respondents were not required to provide the applicant with a letter of reference. The fact that three letters of reference were provided and that the letter at issue here is overall a positive reference does not demonstrate an intention to reprise against the applicant.

In addition, the letter of reference was not sent directly to prospective employers. It was addressed to “whom it may concern” and was seen by the applicant prior to him providing it to a prospective employer. He therefore had the opportunity to either not submit the letter of reference or to provide the necessary clarification of the dates to a prospective employer. A prospective employer could have confirmed the error through a telephone call to Mr. Higgins, as was stated in the letter itself. These factors do not demonstrate an intention to reprise against the applicant.

The applicant raised the additional allegation in the summary hearing that the respondents knew of an upcoming job interview and deliberately sabotaged that interview through the error in the letter of reference. Even if the Application was amended to include this fresh allegation, the applicant has not shown any foundation for it. The error in the dates in the letter could easily be explained in an interview and could be clarified by a prospective employer. There is no reasonable prospect that the applicant could show that the error in dates was intended to cause him to be ill and/or have a panic attack at the interview.

The applicant also suggested in the summary hearing that the positive comment about his knowledge of the law of special education was somehow related to his advocacy on behalf of his children’s interest in special education. A prospective employer would take this positive reference at face value and would not assume that it had any negative connotations. This reference to his extensive knowledge cannot be regarded as a reprisal.

The applicant alleged in the summary hearing that by providing inaccurate dates in the letter of reference, the respondent school board was protecting the interests of the ETFO. The applicant provided no basis for this allegation. In any event, this allegation does not relate to the issue of an alleged reprisal.

In order to show discrimination on the basis of “creed”, the applicant must show some nexus between his belief or practice and a religious belief. … The applicant has not identified such a nexus.

For these reasons, the applicant has not demonstrated a reasonable prospect of success of this Application.

7In 2011 HRTO 1389, the summary hearing addressed whether there was a reasonable prospect of success of the application against the ETFO, Jim White, Mary Bricco, Merlin Leis and Victoria Reaume. The adjudicator concluded as follows (paras. 19-24):

I address first the Application against Ms. Reaume. Ms. Reaume was retained by ETFO to represent the applicant in a complaint against him at the Ontario College of Teachers. The applicant alleges that she was in a conflict of interest, was negligent, withheld information, provided improper advice, was unethical, and made errors in representing him. None of these issues are within the Tribunal’s power to decide; the Tribunal’s role is to adjudicate claims of discrimination, not professional negligence. The applicant does suggest that the lawyer’s actions were affected by his disability or by her belief that he was standing up for the human rights of his students. However, these are merely bald allegations. Moreover, even if Ms. Reaume committed the acts alleged above, there is no reasonable prospect that the applicant can demonstrate a link between them and his disability. Reprisal under s. 8 of the Code requires an applicant to prove intent by the respondent (Noble v. York University, 2010 HRTO 878). There is nothing other than the applicant’s allegation that gives any reason to suggest that Ms. Reaume took the actions she did because of an intent to reprise against the applicant for asserting anyone’s human rights. As the Application against Ms. Reaume has no reasonable prospect of success, it is dismissed and there is no need to consider her other arguments.

As against the ETFO respondents, the applicant makes various allegations about what he says is improper or insufficient representation or a failure to proceed with or file grievances. He states that ETFO directed him to cooperate in what the applicant viewed as infringements of the Code by the Board. He alleges that Mr. Leis told him, on being served with the first OLRB duty of fair representation application and without even reading it, that if he did not withdraw it “it would stop all that the Union was trying to do” and he would lose ETFO’s support on his grievance. He states that the respondents were “aware of the harm they were inflicting on my health in their conspiracy to have me separated from my career”. He alleges that the respondents supported the employer in making numerous improper decisions about his employment.

The bulk of these are not allegations of discrimination or reprisal by the ETFO respondents within the meaning of the Code. Alleged improper representation on a human rights grievance is not a violation of the Code. Merely because an action has a consequence on a person’s health, it is not discrimination on the basis of disability. Merely because an action relates to disagreement about the treatment of disabled students in a school or their teacher, it is not a violation of s. 8 or s. 12 of the Code. The applicant points to no evidence or reason to believe, other than a bald allegation and his disagreement with advice he was given by the union’s representatives, that any of the union’s actions or alleged failures to act were based on discriminatory factors.

The applicant also alleges reprisal, but what he alleges was said was in response to being served with an OLRB application Mr. Leis had not read. Reprisal under s. 8 of the Code must be a reprisal for the assertion of human rights and there must be an intention to reprise for that reason. On the facts as alleged by the applicant and in the context, in which Mr. Leis knew only that he had been served with an OLRB application, there is no reasonable prospect that Mr. Leis could be found to have intended to reprise against the applicant for asserting his human rights.

Accordingly, I find that this Application has no reasonable prospect of success.

8In 2011 HRTO 1594, the summary hearing was held in writing, at the request of the applicant. The decision summarized the decision to hold the hearing in writing as follows (at para. 3):

In a letter dated April 5, 2011, the applicant asked that all hearings in relation to the Application be held in writing. The Case Assessment Direction accordingly directed that the summary hearing would be held in writing unless the applicant advised the Tribunal within 21 days of the Case Assessment Direction that he wished to make oral submissions. The Case Assessment Direction also directed the applicant to make submissions on the question of whether the Application should be dismissed on the grounds that there is no reasonable prospect that the Application will succeed. The applicant was directed to make those submissions no later than 21 days after the date of the Case Assessment Direction.

9The Application was against the HRLSC and the Government of Ontario. In the Application, the applicant alleged that he was denied services from the HRLSC on a number of prohibited grounds and reprisal. He also alleged that the Government of Ontario should direct the HRLSC to provide legal services to him.

10The adjudicator came to the following conclusion about the Application as against the Government of Ontario (at para. 8):

Because the HRLSC is an independent corporation that is not an agent of the Crown, it would not be proper for the Government of Ontario to instruct the Centre to provide legal services to an individual. The allegations in the Application concerning the Government of Ontario are limited to an alleged failure to instruct the HRLSC to provide representation to the applicant. On the basis of the written record before me, it is apparent that there is no reasonable prospect that the Application could succeed against the Government of Ontario.

11The adjudicator came to the following conclusion about the Application as against the HRLSC (at paras. 12-14):

In the Application, the applicant alleges that the HRLSC refused to provide him with legal support services because he is not a new Canadian, because he has a disability, is a Quaker, a father and was a member of a union. However, the basis for these allegations and what caused him to conclude that any of these factors was relevant in respect of his interaction with the HRLSC has not been explained by the applicant.

It appears that the reason that the applicant was not offered legal support services was that, at least for a short period of time, there was a conflict involving the Chair of the Centre’s Board. There is no apparent connection between this and any grounds of discrimination set out in the Code.

On the basis of the information in the record before me, I conclude that there is no reasonable prospect that the Application as against the HRLSC could succeed.

In 2011 HRTO 1664, the hearing related to a Contravention of Settlement Application. The purpose of the hearing was to determine whether the delay in filing the Application was made in good faith and whether there was a breach of the settlement. The adjudicator concluded that the Application was not timely but that the delay was incurred in good faith. The adjudicator concluded as follows (at paras. 37- 39 and 41-42 and 46):The evidence is that the applicant communicated with representatives of the respondent school board in the fall of 2009 about other terms of the settlement. The applicant also asserts that within the six-month limitation period he contacted the HRLSC about filing his Application, and it was within this time period that Mr. Anand’s alleged conflict was detected. Clearly, he was attempting to assert his rights about this and other issues with the respondent school board and its representatives, as well as attempting to obtain legal representation.

The applicant asserts that his dealings with representatives of the respondent school board about the subject matter of this Application and other issues including another the subject of another application and issues pertaining to his daughter, as well as his dealings with the HRLSC and Mr. Anand’s conflict caused a setback to his medical condition such that he could not file his Application in a timely manner. In that regard, he filed medical documentation from different health care providers from May 1, 2003 until January 24, 2011, various communications between him and the respondent school board from May 12, 2008 until December 1, 2009, and communication from Human Resources Development Canada from January 2011.

While the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that disability was so debilitating as to prevent an applicant from pursuing his or her legal rights under the Code: see, for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; Savage v. Toronto Transit Commission, 2010 HRTO 1360; and Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339.

I do not find that the medical documentation submitted by the applicant and dated between May 1, 2003 to June 2, 2009, to be relevant to the issue of the applicant’s delay in filing his Application within the period October 2009 to March 2010 as this documentation pre-dates October 2009.

However, I do find that the Disability Tax Credit Certificate (“disability certificate”) completed by Dr. Percival on June 1, 2010, and her January 24, 2011 letters to be relevant to the issue of delay and that they support the applicant’s position that his medical condition contributed to the delay in filing out his Application. On this basis, I find that they demonstrate that the applicant’s delay was incurred in good faith.

Accordingly, based upon this medical documentation, I do accept that the applicant’s medical condition was so debilitating that it prevented him from pursing his rights under the Code. Having found that the delay was incurred in good faith, and given the respondent’s concession that there was no significant prejudice, the Application is not dismissed for delay and may proceed accordingly.

12The adjudicator concluded that there was not a breach of the settlement and dismissed the Application on this basis (at paras. 47- 52):

… para. 2 of the settlement required the respondent school board to place the applicant on a paid leave of absence effective September 1, 2009, through to September 16, 2009, inclusive. The applicant initially submitted that this required him to be paid 12 days in September 2009, that he received payment for 11 days, and that he is entitled to be paid for one additional day - Labour Day. During the conference call hearing, the applicant sought payment for five additional days – Labour Day and weekends. It is not disputed that the applicant received payment for 11 days in September 2009.

In my opinion, the settlement was not breached by the respondents. Para. 2 of the settlement refers to a “paid leave of absence” and the applicant had been employed by the respondent school board as a teacher. Accordingly, the terms of the teachers’ collective agreement with the respondent school board and the provisions of the Education Act are applicable to understanding what “paid leave of absence” means.

Article 10.2(b) of the collective agreement states:

A teacher will be paid on the grid salary in the proportion that the total number of school days for which the teacher performed duties bears to the total number of school days in the school year, unless otherwise expressly agreed to between the Board and the Union Local.

The grid salaries are set out in Article 10.03(a) and show they are, for 2009, effective September 1, 2009.

Regulation 304 of the Education Act, R.R.O. 1990, defines “school day” in section 1(1) as: “means a day that is within a school year and is not a school holiday”. Section 2(1) states, “Subject to section 5 [which is not applicable here], the school year shall commence on or after the 1^st day of September and end ….”. Section 2(4) specifically identifies school holidays, which includes “every Saturday and Sunday) (section 2(4)1) and “Labour Day” (section 2(4)3).

I find that the applicant is not entitled to be paid for Labour Day or any Saturday or Sunday that fell within the period September 1 to 16, 2009. He was entitled to be paid for 11 days and was in fact paid for 11 days.

THE REQUEST FOR RECONSIDERATION

13The applicant provided submissions related to his Reconsideration Requests in correspondence to the Tribunal commencing on July 27, 2010 through to November 30, 2011. He has relied on the following two grounds for a reconsideration of the decisions:

a) the decisions are in conflict with established case law or procedure and the proposed reconsideration involves a matter of general or public importance; and

b) other factors exist that outweigh the public interest in finality of Tribunal decisions.

14The applicant has identified a number of factors that he considers relevant in the reconsideration requests:

a) He was medically incapacitated during the entire period of the summary hearings;

b) He is unable to represent himself because of poverty, illness, lack of professional support and no extended family;

c) His legal support from the HRLSC was removed due to a conflict of interest;

d) He was not capable of rebutting false statements made by the respondents in the summary hearings because of the nature of his illness and the shock caused by the statements;

e) The decision relating to the settlement of an application is not consistent with human rights law;

f) New information is now available relating to his medical condition;

g) Some of the decisions do not refer to relevant factors and documents;

h) Documents filed by the applicant contradict the statements made by the respondents;

i) Some information relevant to his Applications may only be revealed through cross-examination;

j) The settlement of his Application (in 2009 HRTO 506) was obtained under duress;

k) The applicant was denied a right to make an oral presentation (in 2011 HRTO 1594); and

l) The adjudicator concluded (in 2011 HRTO 1594) that the applicant had been denied representation by the HRLSC for a short time, when the applicant had recently confirmed that it was still denying him representation.

15The applicant submitted that his medical condition prevented him from adequately presenting his case “with a clear mind and relevant details”. He stated that his medical disability was referenced in documents filed with the Tribunal and at the summary hearings. The applicant also referred to the burden of multiple applications, some under transitional provisions.

16The new information relating to his medical condition is a letter from his disability insurer stating that his long term disability commenced in January of 2009. The applicant has also provided a letter from his physician dated August 4, 2011, stating that his mental health conditions contributed to his “great difficulty in coping with situations in which he is being questioned without representation”. The letter states that in such situations he becomes “incapacitated” and his “cognitive abilities are compromised”. The letter concludes that he would benefit medically from representation during hearings.

17No submissions were requested from the respondents.

DECISION

18Under 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. The Rules as well as a Practice Direction provide guidance on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008).

19Rule 26.1 states that a request for reconsideration must be filed within thirty days of the date of the decision.

20The applicant alleges that he is currently and was at all material times in relation to his underlying applications incapacitated and unable to represent himself. The applicant has, separately and consistently, claimed that he was entitled to free legal representation. However this is quite different from a claim that he is under a legal incapacity such that he is unable to conduct this litigation.

21The relevant legal principles relating to the question of capacity were considered by the Tribunal in Romanchook v. Garda Ontario, 2009 HRTO 1077 at paras. 32 – 37:

In Ontario law, a variety of statutes and provisions govern the issue of mental capacity, including the Mental Health Act, R.S.O. 1990, c. M.7; the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A. and the SDA. The SDA includes detailed provisions about when and how it will be determined whether a person is incapable of managing his or her property and/or personal care, and the appointment of guardians of property and personal care for those without capacity.

Incapacity to manage property is defined as follows in s. 6:

A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

A similar definition applies to personal care, in s. 45:

A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

The law presumes that adults have capacity: see, for example, s. 2 of the SDA and Perino v. Perino 2008 CanLII 11048 (ON SC), (2008), 52 R.F.L. (6^th) 341, at para. 46 (Ont. S.C.J.).

Under the SDA, a guardian of property has the power “to do on the incapable person’s behalf anything in respect of property that the person could do if capable, except make a will” (s. 31). A full guardian of personal care may: “be the person’s litigation guardian, except in respect of litigation that relates to the person’s property or the guardian’s status or powers” and “settle claims and commence and settle proceedings on the person’s behalf, except for the purposes of litigation that relates to the person’s property or to the guardian’s status and powers” (ss. 59(2)(b) and (c)). A partial guardian of personal care has the powers specifically indicated, which may include those in ss. 59(2)(b) and (c).

Legal capacity depends upon the particular decision being made. As explained by Benotto J. in Calvert (Litigation Guardian of) v. Calvert 1997 CanLII 12096 (ON SC), (1997), 32 O.R. (3d) 281 at paras. 54-55 (Gen. Div.)

A person’s right of self-determination is an important philosophical and legal principle. A person can be capable of making a basic decision and not capable of making a complex decision. Dr. Molloy, the director of the Geriatric Research Group and Memory Centre and associate professor of geriatrics at McMaster University, said:

Different aspects of daily living and decision-making are now viewed separately. The ability to manage finances, consent to treatment, stand trial, manage personal care, make personal care or health decisions, all require separate decision-making capabilities and assessments.

The courts have recognized these varying levels of capacity. Birkert L.J. said there “can be no doubt there are degrees of capacity”: Park v. Park, [1953] 2 All E.R. 1411 at p. 1434. [1954] P. 112 (CA).

In Calvert, at para. 59, the Court noted that instructing counsel requires a relatively high level of competency:

There is a distinction between the decisions a person makes regarding personal matters such as where or with whom to live and decisions regarding financial matters. Financial matters require a higher level of understanding. The capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy.

The conduct of court litigation on behalf of parties who are incapable of making decisions is governed by comprehensive schemes contained in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended (see Rule 7) and the Rules of the Small Claims Court, O. Reg. 258/98, as amended (see Rule 4). Both Rules define a person under a disability to include a person or party who is “mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person or party has a guardian or not” [emphasis added] (Rules of Civil Procedure, Rule 1.03 (1), Rules of the Small Claims Court, Rule 1.02(1)). Both sets of Rules require that, with limited exceptions, a proceeding must be commenced, continued or defended on behalf of a person under a disability by a litigation guardian. The courts have powers to appoint, remove, and substitute litigation guardians in certain circumstances, and, in particular, to appoint the Public Guardian and Trustee or Children’s Lawyer as litigation guardian. Courts must approve settlements and give leave for discontinuances. For proceedings under the Rules of Civil Procedure, a litigation guardian must be represented by a lawyer.

22In 2011 HRTO 1664, the adjudicator accepted that the applicant’s medical condition “was so debilitating that it prevented him from pursing his rights under the Code” (at para. 46). The findings of the adjudicator relate to the applicant’s failure to meet a time limit because of a disability and is not a conclusion about his capacity.

23In applying these principles to the current matter, I note that the applicant has had the assistance of his mother. At no time to date has the applicant or his assistant suggested or sought the appointment of a litigation guardian. The applicant also did not raise the issue of incapacity before or during the hearings. The applicant has also been able to make extensive submissions in these Reconsideration Requests and in the underlying proceedings. The note submitted from his physician notes his great difficulty in coping with hearings and that he would benefit from representation. Although the physician states that he “becomes incapacitated” in summary hearings, in the context of the note, it appears that the doctor does not mean “incapacity” in the legal sense. His physician is stating that the applicant has difficulty making oral submissions. However, the applicant has now had an opportunity through the Requests for Reconsiderations to address any issues that he was incapable of addressing during the course of any of the various proceedings.

24Having regard to the presumption of capacity, the various legal principles set out above, and the factors indicated, I find that there is no basis to conclude that the applicant is now or was at any material time legally incapable of conducting this litigation.

25Having determined that the applicant was not previously or currently under a legal incapacity that would render him unable to conduct this litigation, I turn to the other grounds of his Reconsideration Request.

26The Request to Reconsider the decision in 2009 HRTO 506 is well beyond the thirty-day time limit. That decision simply confirmed the withdrawal of an Application after a settlement. The applicant is now challenging that settlement through his request for a reconsideration. Aside from his allegation of incapacity, which I have addressed above, the applicant provided no reason for the lengthy delay. It is not appropriate to extend the time limit for a reconsideration request in the circumstances.

27It should be noted that in some of his Applications, the applicant relied on the terms of the settlement he now says was obtained under duress. It is therefore contradictory to now allege that the settlement agreement was obtained under duress and so, even if I were to have considered this allegation, the applicant would have had serious credibility issues to overcome in relation to it.

28The Request to Reconsider 2011 HRTO 1075 is also untimely. The applicant has not provided a reason for the delay. The request to reconsider this decision is therefore dismissed. However, given the overlap in the grounds relied upon for the Reconsideration Request, the reasons set out below relating to the other decisions are equally applicable to this decision.

29Rule 26.5 states 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; 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.

30The Tribunal’s Practice Direction on Reconsideration states:

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.

31I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

32The applicant also submits that he was prevented from receiving legal support because of a conflict of interest. The HRLSC is not required to represent applicants, as noted in 2011 HRTO 1389 at para. 10. There is no right of legal representation in applications before the Tribunal, the Tribunal’s processes are designed to be accessible whether parties are represented or not, and the inability to obtain legal representation is not relevant in the determination of a request for reconsideration. The allegation that the applicant is still being denied representation is not sufficient to justify a reconsideration of that decision.

33There are no new facts presented that would justify reconsidering the decisions. The applicant had an opportunity to raise the facts contained in his Request prior to the dismissal of the applications and he did not. As noted above, the letter from the disability insurer only confirms that the applicant was on long term disability from a certain date. It does not provide any new information that is relevant in assessing a request for reconsideration.

34The applicant alleges that he did not have an opportunity to make oral submissions in 2011 HRTO 1594. The applicant requested that the hearing be conducted in writing. He was given a time period within which to change his mind. He did not contact the Tribunal to state that he wanted an oral hearing. I find that there was no breach of natural justice or the Code that would justify a reconsideration of this decision.

35The applicant has stated that the Tribunal did not consider documents he had provided to the Tribunal. There is no suggestion in the decisions that the adjudicators did not review the documentation on file. The applicant has also suggested that some information relevant to his applications would only be revealed through cross-examination. A summary hearing is not a full hearing of the evidence. A summary hearing is intended to determine whether there is a reasonable prospect of success (see Dabic v. Windsor Police Services, 2010 HRTO 1994). It is not intended to be a full hearing involving the testing of evidence through testimony and cross-examination.

36The decisions are not in conflict with the established jurisprudence of the Tribunal and the applicant has not identified any contradictory case law. The applicant has not established that the proposed reconsideration involves a matter of general or public importance.

37The applicant has not raised any issues or concerns that outweigh the public interest in the finality of Tribunal decisions.

38The applicant has also asked for a reconsideration of the administrative action of closing a file because it is incomplete. Assuming without deciding that reconsideration of such a decision is available, I note that during the time period within which he was given an opportunity to complete his Application, he was filing submissions in relation to his various Requests for Reconsideration. The applicant has provided no reason for his failure to complete his Application, other than an alleged incapacity. As he has been capable of filing Requests for Reconsideration, he was equally capable of completing an Application.

39In conclusion, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decisions and the administrative closing of a file. The Request is denied with respect to all six applications.