HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.M.

Applicant

-and-

St. Joseph’s Health Centre

Respondent

RECONSIDERATION DECISION

Adjudicator: Kathleen Martin

Date: June 20, 2013

Citation: 2013 HRTO 1089

Indexed as: J.M. v. St. Joseph’s Health Centre

WRITTEN SUBMISSIONS BY

J.M., Applicant ) Self-represented

[1] This is an Application filed under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, as amended (the “Code”) alleging discrimination in services on the basis of disability.

[2] On January 27, 2012, I dismissed the Application against one of the respondents, Dr. Rhee, and on February 1, 2012, the Tribunal issued reasons: 2012 HRTO 239. I found that the Application against Dr. Rhee had no reasonable prospect of success. This decision was made after a hearing in which both Dr. Rhee and the applicant gave evidence and my consideration of any additional evidence the applicant stated she would call (see para. 33).

[3] The applicant filed a Request for Reconsideration and submissions in support of that Request including asking that consideration of the Request be deferred until after the hearing was concluded against the remaining respondent, which has now been concluded. During final submissions at the hearing against the remaining respondent, the applicant made further submissions in respect of the allegations against Dr. Rhee. I have considered all of the applicant’s submissions in determining this Request.

[4] A respondent is not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal. In the circumstances of this Request, the Tribunal did not deem it necessary to seek submissions from the respondent.

Analysis and Decision

[5] Under 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.

[6] The 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). Rule 26 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.

7Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. In this regard, it is helpful 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.

[8] The applicant seeks reconsideration of the Interim Decision relying on sections 26.5 (a), (c) and (d).

[9] With respect to the claim of new facts or evidence (26.5 (a)), the applicant refers to the evidence provided in the hearing of the merits of the Application against the Hospital including the evidence of Ms. Johnson and others given about the police approach in arresting individuals.

[10] I did not find any of the evidence the applicant references from the subsequent hearing to be relevant to the allegations against Dr. Rhee such that reconsideration would be justified.

[11] None of the witnesses who testified in the hearing on the merits of the allegations against the Hospital gave any direct evidence about the allegations against Dr. Rhee arising from the applicant’s Hospital attendance on February 2, 2008. While Ms. Johnson testified that she received a complaint about Dr. Rhee’s conduct from the applicant and forwarded it to Dr. Rhee, she did not hear back from him and had no other communication with him. Further, while Ms. Johnson testified that she raised the applicant’s concerns about Dr. Rhee with the chief of emergency, this potential evidence had been referenced and considered in the summary hearing decision pertaining to Dr. Rhee (see para. 42 of the Interim Decision). Further, the evidence given about the police approach in arresting persons who allegedly threaten suicide does not justify reconsideration of my determination in the summary hearing. I specifically addressed Dr. Rhee’s consideration of the past history of Mental Health Act arrests and indicated that the accuracy of the history or the underlying circumstances was not relevant to my determination of whether the Code was breached (see para. 41).

[12] With one exception, I do not find it necessary to review the remainder of the applicant’s extensive submissions which she argues fall under s. 26.5 (c) and (d). I view the applicant’s remaining submissions to be tantamount to rearguing the case both in respect of my factual findings and the application of legal principles. As is apparent from the Practice Direction, reconsideration is not available simply because a party disagrees with the Tribunal’s decision and is not an opportunity to reargue the case and introduce new issues or arguments.

[13] The exception relates to the applicant’s submission that I erred in considering the Form 1 as it was not an exhibit of record. This is inaccurate. The Form 1 was marked as Exhibit 9 in the hearing. Further, contrary the applicant’s submission, Dr. Rhee specifically testified having reviewed the Form 1 during his testimony.

[14] In summary, while I have considered the applicant’s submissions, the applicant has not established any of the criteria justifying reconsideration.

[15] The Request is dismissed.