HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mark Chan
Applicant
-and-
Toronto Police Services Board, Toronto Police 51 Division and Office of the Attorney General
Respondents
RECONSIDERATION DECISION
Adjudicator: Kathleen Martin
Date: April 4, 2012
Citation: 2012 HRTO 687
Indexed as: Chan v. Toronto Police Services Board
WRITTEN SUBMISSIONS
Mark Chan, Applicant ) Representing himself
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). By Decision dated December 2, 2011 (2011 HRTO 2171), the Tribunal dismissed the Application.
2The applicant has filed a Request for Reconsideration of the Tribunal’s Decision.
background
3The Application arose from the applicant’s interactions with the police and judicial system. The applicant alleged that he was subjected to malicious prosecution and racial and marital status discrimination by the police and “Office of the Attorney General” in the period February 2006 to January 2007 in respect of a criminal charge which was eventually withdrawn. The applicant also alleged that the police respondents delayed in removing his fingerprint and other records.
4In the Decision, I addressed first the timely allegation (that the police intentionally delayed destroying the fingerprint and other records about the applicant). I concluded that there was no credible connection between this allegation and the Code and thus found that the applicant had not identified any specific acts of discrimination on the basis of race and marital status. I found that the remaining allegations were filed more than one year after the incident of alleged discrimination and that the applicant had not satisfied me that the delay was incurred in good faith. The Application was therefore dismissed.
RECONSIDERATION OF A TRIBUNAL DECISION
5Under 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.
6The 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 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
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.
7The Tribunal’s Practice Direction on Reconsideration begins with the following statements:
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.
8As 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.
9In his Request, the applicant relies on the criteria in Rules 26.5 (a) (new evidence) and 26.5 (d) (other factors exist that outweigh the public interest in the finality of Tribunal decisions).
10I have reviewed the applicant’s submissions but find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.
11Most of the applicant’s submissions refer to facts that were already before the Tribunal when the decision was written. For example, the applicant states that his main reason for the delay in filing the Application was his “mental breakdown/disability” which he acknowledges he “already mentioned last year”. I considered this explanation for delay and addressed the same at paras. 21 and 22 of the Decision.
12Some of the applicant’s submissions refer to facts that were known to the applicant at the time of the conference call hearing but for reasons unstated, the applicant did not refer to or referred to more briefly than now asserted.
13The applicant expands somewhat on his difficulties in finding counsel. To the extent the applicant relies on additional information in support of this reason for his delay, I do not find these additional details justify reconsideration. The applicant has not suggested that these additional facts could not have been presented earlier. Further and in any event, I do not find the additional details cast doubt on my Decision given that the information is vague and lacking of details such as when the inquiries occurred which is critical in an assessment of delay.
14Likewise, the applicant cites his application for his “PEO P. Eng Licence” and his subsequent rejection as accounting for the delay in filing the Application. The applicant states that this process made him depressed and unable to think clearly and further explains that the information he received about the cost and process for appealing that decision made him “hesitate to seek [a] lawyer for malicious prosecution” thus presumably justifying delay. While the applicant did not previously refer to this explanation for delay he has also not provided any explanation of how these are new facts that could not reasonably have been obtained earlier, thus justifying reconsideration. In any event I do not that these additional facts would change my conclusion on the issue of delay.
15The applicant also provides submissions which appear to be about delay in filing the Application about his allegation regarding the fingerprint and other records. As this allegation was not dismissed because of delay, I do not find it necessary to address those submissions.
16The applicant did not expressly address the second ground of reconsideration that he relied on. Having regard to his submissions, I do not find that he has established that there are other factors that exist that outweigh the public interest in the finality of Tribunal decisions.
17In sum, I am satisfied that the applicant has not established that there are new facts that could potentially be determinative of the case and that could not reasonably have been obtained earlier nor are there any other grounds justifying reconsideration..
18The Request for Reconsideration is denied.
Dated at Toronto, this 4^th^ day of April, 2012.
”signed by”
Kathleen Martin
Vice-chair