HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dale James
Applicant
-and-
Toronto Police Services Board
Respondent
INTERIM DECISION
Adjudicator: Jennifer Scott
Indexed as: James v. Toronto Police Services Board
APPEARANCES
Toronto Police Services Board, Respondent
Kalli Chapman and Matthew Cornett, Counsel
Introduction
1This Application was filed on April 2, 2012, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that he was racially profiled by the police on January 6, 2012, and February 1, 2007.
2By Interim Decision dated February 12, 2013 (2013 HRTO 250), the applicant’s request to add 32 additional allegations of racial profiling between April 9, 2006 and December 3, 2012 was granted. The respondent was directed to file an amended Response to the amended Application by March 27, 2013.
3The applicant’s request to add 52 police officers involved in the alleged incidents was not allowed because the officers had not received notice of the applicant’s request to add them as respondents to the Application. The applicant was directed to provide notice to the individual officers by delivering to them his Request for Order During Proceedings (“RFOP”) seeking leave to add them as respondents.
4The applicant delivered the amended Application to the Tribunal and the respondent on February 20, 2013 by e-mail. It appears from the Tribunal’s file that the correct e-mail address was used for respondent’s counsel.
5On March 14, 2013, the counsel for the respondent sought information as to whether the Application had been amended and whether the RFOP had been served on the individual officers. The respondent also requested an extension of time of three months (to June 14, 2013) to file an amended Response to the amended Application.
6By Case Assessment Direction dated March 26, 2013, the Tribunal directed the applicant to deliver a RFOP to the individual officers he wanted to add as individual respondents by April 30, 2013, and to advise the Tribunal and the respondent which officers had received the RFOP by May 6, 2013. The Tribunal also granted the respondent an extension of time to deliver the amended Response to May 30, 2013.
7On May 27, 2013, the respondent sought reconsideration of the Tribunal’s Interim Decision dated February 12, 2013, as provided for in section 45.7 of the Code because it had discovered the applicant had commenced civil claims for the same period of time as the additional incidents of discrimination set out in the amended Application.
DECISION
8The Request for Reconsideration is denied. The respondent’s request for an extension of time to deliver the amended Response is also denied.
LEGISLATIVE PROVISIONS
9Sections 45.7 and 45.8 of the Code provide the Tribunal with authority to reconsider its decisions while confirming the finality of the Tribunal’s decisions:
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.
45.8 Subject to section 45.7 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.
10Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration as well as a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers (Practice Direction #4 Reconsideration).
11Relevant to this Decision are the following Rules:
26.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision.
26.3. A Request for Reconsideration must include:
(a) reasons for the request, including the basis upon which the Tribunal is asked to grant the request for reconsideration;
(b) submissions in support of the request; and
(c) the remedy or relief sought.
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;
(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.
12Practice Direction #4 states, in part:
Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO 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.
13The Tribunal’s jurisprudence is clear that a Request for Reconsideration is not an appeal and is granted only in limited circumstances. There must be more than disagreement with a decision or an alleged error to find that the conditions in Rule 26.5 have been met. As the Tribunal stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 at para. 56:
As is evident from the Rules and made explicit in Practice Direction #4, reconsideration is not an appeal. It is not an opportunity to re-argue a case. Once the parties to a case 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.
ANALYSIS
Reconsideration
14The respondent is requesting reconsideration of the Tribunal’s Interim Decision because in completing its investigation into the new allegations of discrimination, it determined that one of the new allegations that occurred on January 21, 2006, was the subject of a civil action that was settled following a pre-trial on August 14, 2006. It also discovered that the applicant had filed another civil action in 2011 relating to events that allegedly occurred on March 17, 2009. The respondent concedes this incident was not included in the amended Application and was settled out of court on January 23, 2013. Finally, the respondent discovered that the applicant brought a civil claim on March 21, 2013, against the respondent and nine individual officers for seven incidents of discrimination spanning the years 2006 to 2012. The respondent acknowledges that these incidents were also not included in the amended Application.
15With the exception of the January 21, 2006 incident, none of the incidents set out in the amended Application have been the subject of a civil claim. The respondent argues the applicant must choose one forum to advance his claims and it is an abuse of process for him to pursue both avenues of redress. It argues further that the civil claims are relevant to the question of whether the new allegations are out of time. Finally, the respondent disputes the Tribunal’s findings in its Interim Decision allowing the amendments to the Application and relies on Tribunal case law in support of its arguments.
16In my view, the correct process for the respondent to follow is to file a RFOP seeking a dismissal of the new allegations on the grounds set out in its May 27, 2013 RFOP. The applicant will then have an opportunity to respond to the RFOP.
17The respondent is using the reconsideration process to appeal the Interim Decision. The Tribunal’s Practice Direction and case law are clear that reconsideration is not an appeal nor is it an opportunity to re-argue one’s case or express disagreement with a decision. For this reason, the Request for Reconsideration is denied.
Extension of Time
18The applicant delivered the amended Application on February 20, 2013. The respondent was to deliver an amended Response by March 27, 2013. That deadline was extended to May 30, 2013, at the respondent’s request. The respondent requests a further extension to June 30, 2013, to deliver its amended Response.
19The applicant delivered the amended Application to the respondent on February 20, 2013. Although there is some issue as to when respondent’s counsel received it, it has been in counsel’s hands since March 15, 2013. Counsel has had two and one-half months to deliver an amended Response. Although counsel asserts that she requires additional time to deliver the amended Response because of the breadth of the new allegations and the concurrent civil claims, it appears that much of the information required is contained in the Request for Reconsideration. As such, the request for an extension of time to file the amended Response is denied.
Individual Respondents
20The applicant was directed to advise the Tribunal and the respondent whether any officers had been provided with his RFOP to add them as individual respondents by May 6, 2013. The applicant has not complied with this direction. As such, the Application will proceed against the Toronto Police Services Board as the only named respondent.
21This matter will proceed to mediation on July 23, 2013.
ORDER
22The request for reconsideration and the request to extend the time to file an amended Response are denied. The respondent is directed to file an amended Response within five days of the date of this Interim Decision.
Dated at Toronto, this 5th day of June, 2013.
“Signed by”
Jennifer Scott
Vice-chair