Mario Panacci v. Toronto Transit Commission and Anne Tyrrell, 2013 HRTO 1345

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mario Panacci Applicant

-and-

Toronto Transit Commission and Anne Tyrrell Respondents

RECONSIDERATION DECISION

Adjudicator: Maureen Doyle

Date: August 15, 2013

Citation: 2013 HRTO 1345

Indexed as: Panacci v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Mario Panacci, Applicant Self-represented

Toronto Transit Commission and Anne Tyrrell, Respondent Lucy Siraco, Counsel

Introduction

1The Tribunal issued its Decision dismissing this Application, Panacci v. Toronto Transit Commission 2012 HRTO 1423. The applicant has asked the Tribunal to reconsider its Decision.

Background

2The Tribunal’s Decision found as follows:

The Tribunal found that the applicant’s delay in filing his Application was not incurred in good faith and as the circumstances in subsection 34(2) of the Code did not apply to the facts, the Application could not proceed under subsection 34(1) of the Code and was therefore dismissed.

The Request for Reconsideration

3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. There are new facts or evidence that could potentially be determinative of the case and that could not reasonably be obtained earlier.

b. The applicant was entitled to notice, but through no fault of his own, did not receive notice of the proceeding or a hearing.

4The applicant submits that he did not receive a Form 2 from the respondent, but that instead he received their Request for Order During Proceedings (RFOP) seeking dismissal on the basis of delay. He submits that as he did not receive the respondent’s Response and notice of completeness with respect to a Response, he was not in a position to reply to the respondent’s RFOP seeking dismissal on the basis of delay.

5The applicant submits that in his Application, he had noted that the reason for his delay in filing was due to his Post Traumatic Stress Disorder (PTSD) and submits that if the Tribunal required supporting documentation regarding his PTSD, it should have asked him for it when it reviewed his Application for completeness. He has subsequently submitted medical documentation.

6In its response to the Request for Reconsideration the respondent notes that the applicant had notice of its Request for an Order During Proceedings (RFOP), in which it sought dismissal of the Application on the basis of delay, but had chosen not to respond. Further, the evidence the applicant has now provided is not new evidence, nor could it have the potential to be determinative of the case. Accordingly, it submits that the reconsideration should not be granted.

Decision

7Under 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.

8The 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.

9The 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.

10As 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.

11I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

12As indicated above, the applicant relies on Rule 26.5 (a) and (b).

13The applicant filed his Application on April 16, 2012. He alleged that the last incident of discrimination occurred on September 7, 2010, more than one year prior to the filing of his Application. As noted in the Decision in this matter, by way of explanation for the delay, he stated that he did not file an Application sooner as he was suffering from “trauma and shock” and post-traumatic stress after his termination. He also stated that his lawyer told him to proceed only once he was “mentally stable”. He also detailed efforts he had made to address the matter of his termination, both internally at his former employer the respondent, and with the assistance of a lawyer.

14The respondent did not file a Form 2 Response, but did file an RFOP seeking dismissal on the basis of delay and seeking a deferral of the due date for its Form 2, if necessary. The respondent also filed a Statement of Delivery, confirming that the RFOP was delivered to the applicant via email.

15The applicant did not make any response to the RFOP.

16The Tribunal issued the Decision, dismissing the matter on the basis of delay, finding that he had not provided evidence to indicate that any diagnosis which he may have had rendered him incapable of filing an Application within the statutory one year limit. It also found that the level of activity in which he had engaged in pursuing a remedy from the TTC was inconsistent with an inability to file an application within the one year time limit.

17In his Request for Reconsideration, the applicant appears admit that he received the RFOP but indicates that he did not think he could make a response to the RFOP or provide his medical documentation until he received the respondent’s Form 2.

18Subsequent to the applicant’s Request for Reconsideration, the Tribunal issued a Case Assessment Direction (CAD) directing the applicant to provide any further submissions and or evidence he has with regard to the issue of delay, and also directing the respondent to file its submissions in Response to the applicant’s Request for Reconsideration.

19I am not persuaded that the applicant did not have notice of the fact that the respondent had requested an Order from the Tribunal or that he did not have notice of the fact that he was required to respond to that request. I do not agree with his assertion that it was up to the Tribunal to invite him to submit the documentation he sought to rely upon in support of his explanation for the delay. Even if I were to accept his assertion that he had not had an opportunity to make submissions and provide documentation regarding delay, he has now had the opportunity to provide any submissions and documentation he wished to make in support of his explanation for the delay, and for the reasons that follow, I do not find that his submissions and documentation would alter the result in the Decision.

20Section 34 states, in part:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

21In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paras. 24-25, the Tribunal made the following general comments about untimely applications:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2).

22The applicant has now filed what he described as his “complete PTSD medical history from October 2010 to Dec 2012”. He submits it “supports my reasons for delay and again to state them clearly, I took action and started my HRTO application on the first day I felt mentally capable of taking on the stress of dealing with the matter of my PTSD while managing all other aspects of my busy and successful life.”

23The medical documentation filed by the applicant includes what appears to be a doctor’s clinical note from October 15, 2010, indicating that he had “all symptoms of depression” and that he was counseled for one hour regarding his PTSD. The next clinical note from his doctor is dated January 5, 2012, indicates he had a new job and indicates that he is doing 12 hour days, is tired and dizzy and not sleeping well. He has also included an x—ray result and results from what appear to be cardiology and blood tests in January 2012. He has included a January 25, 2012 note from his doctor indicating that he was experiencing “some stress symptoms”. He has included a note which appears to be dated December 18, with no year indicated. As the applicant has indicated that he has included his “complete PTSD medical history from October 2010 to Dec 2012”, it appears likely that this note is from December 18, 2012. The note indicates that he “still gets anxiety attack”, sweats and flashbacks as “part of PTSD”. It indicates that he is able to work with his wife in her job, and that he had tried another high stress job 2 months previous, but had not been able to do it due to stress symptoms. It states “Since incidence [sic] with TTC has not been able to function in stress”. He also includes a note from January 24, 2012 which states that he “[H]ad PTSD after last job. Seems to be recovering. In legal dispute re human rights. Notes of visits supplied to patient. Letter written”. Finally, he includes an invoice for doctor’s notes.

24The applicant submits that his delay was incurred in good faith because his PTSD was the reason for the delay. In considering medical reasons for a delay in filing an Application, the Tribunal has required evidence which establishes that the medical reasons prevented the applicant from filing an Application in a timely fashion. At paragraphs 12-13 of Todd, for example, the Tribunal stated:

In order to demonstrate good faith an applicant must show something more than simply an absence of bad faith: see Reid v. March of Dimes, 2009 HRTO 2207.... In determining whether an applicant’s mental health concerns give rise to good faith, the Tribunal has held that a disability must directly impede the applicant’s ability to file an application.

The applicant did not provide medical evidence to establish that the delay in pursuing his human rights was connected to or caused by his mental health. As stated in the Tribunal’s decision in Dionne v. Toronto(City), 2011 HRTO 317…, 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 the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code. See also for example Reid v. Ontario March of Dimes; Downer v. Little & Jarrett, 2010 HRTO 992… and Savage v. Toronto Transit Commission….

25Though the medical information the applicant provided indicates he has experienced stress and was seen for one hour by his doctor in October 2010 regarding PTSD, the documentation does not indicate that his diagnosis rendered him incapable of filing an Application within the one year time limit. In fact, it indicates that though he was seen by his doctor for one hour of counseling about PTSD in October 2010, he did not see his doctor again until January, 2012, by which time he had started a new job. The applicant also submits that the respondent employer has not acted in good faith and asserts that he was a good employee.

26Even noting the evidence and submissions the applicant has now filed with the Tribunal regarding his delay, he has not provided new facts or evidence that could potentially be determinative of the case and that could not reasonably be obtained earlier. The documentation he provides could have been obtained earlier, but in any event, it would not have changed the result in the Decision, even had it been provided at an earlier point. The applicant has provided no evidence to indicate that any diagnosis which he may have had rendered him incapable of filing an Application within the statutory one year limit. He has provided no evidence which would indicate that the level of activity in which he had engaged in pursuing a remedy from the TTC, was consistent with an inability to file an application within the one year time limit.

27In sum, 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 Decision. The Request is denied.