Tripathi v. Kingston Police Force, 2013 HRTO 1355

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kiran Tripathi

Applicant

-and-

Kingston Police Force, Chief of the Kingston Police and Chris Gobeil

Respondents

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott

Date: August 7, 2013

Citation: 2013 HRTO 1355

Indexed as: Tripathi v. Kingston Police Force

WRITTEN SUBMISSIONS

Kiran Tripathi, Applicant

Self-represented

Introduction

1The applicant filed this Application on October 30, 2012, alleging discrimination in the receipt of services on the basis of race and colour contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction dated November 29, 2012 (the “CAD”), the Tribunal, on its own initiative, directed that a summary hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed. The Tribunal advised the parties that there were two possible reasons why the Application may not succeed. One, the allegations may be untimely, and two, the applicant may be unable to establish a link between the alleged discrimination and a prohibited ground of discrimination. The respondents were advised that they did not need to file a Response.

3In the CAD, the applicant’s attention was specifically directed to the timelines set out in s. 34 of the Code:

34(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.

4The summary hearing was conducted by teleconference on March 12, 2013.

5On March 19, 2013, the Tribunal issued its decision in this Application, 2013 HRTO 470 (the “Decision”). The Application was dismissed because it was filed outside of the one-year time period required under s. 34(1) of the Code.

6On June 17, 2013, the applicant sought reconsideration of the Tribunal’s Decision as provided for in s. 45.7 of the Code.

LEGISLATIVE PROVISIONS

7Sections 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.

8Further 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).

9Relevant 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.

10Practice 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.

11The 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 paras. 56-57:

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

12The applicant asks the Tribunal to reconsider the Decision because in her view, the summary hearing was unjust. The applicant states that during the summary hearing, I accused her of being disrespectful and ignorant. She states further that I interrupted her submissions, scolded her and was generally hostile towards her. In addition, the applicant disputes the finding in the Decision that the Application was filed out of time. She states her last contact with the respondent was in March 2012 and the Application was filed in October 2012, within the one-year time period required under the Code. The applicant also reiterates the merits of the Application in her Request for Reconsideration.

13In order to understand the relevant timelines, it is necessary to set out the background of the complaint. The applicant attended the respondent’s headquarters on November 16, 2010 to report that she had been sexually assaulted by her lawyer. In April 2011, the applicant was advised by Detective Constable Gobeil (“Gobeil”) that after consulting with the Crown Attorney, a decision was made not to lay charges against the applicant’s former lawyer. The applicant wrote to Gobeil that same day and complained that her race was one of the reasons for the decision not to lay charges. In March 2012, the applicant wrote to the respondent and complained once more about the respondent’s failure to lay criminal charges when she had learned another woman had been victimized by her former lawyer.

14In the Decision, I held the applicant’s contact with the respondent in March 2012 did not constitute a new allegation of discrimination because it was the same complaint that had been made by the applicant in April 2011 regarding the decision not to lay criminal charges. As such, the March 2012 incident did not operate to extend the time period under the Code. I held the limitation period under the Code would have little meaning if it could be extended by simply repeating the same allegation of discrimination at a later time.

15The issue on the summary hearing was whether the Application was filed outside of the one year time period and if so, whether the applicant had a good faith explanation for filing late. I held the applicant failed to provide a good faith explanation for the delay because she was aware of her rights when she complained to the respondent in April 2011, but failed to file her Application until October 2012, eighteen months later. In making this finding, I relied on the decision of Stewart v. Mitten Vinyl, 2010 HRTO 1628, which held that in order to establish good faith, an applicant must show she had no reason to make inquiries about her rights during the one-year period following an alleged infringement of the Code.

16When reviewing the Request for Reconsideration, it is clear that the applicant was frustrated by the narrow scope of the summary hearing. She feels strongly about her complaint and wants it to be heard. However, the issue on the summary hearing was not whether the applicant’s complaint has merit. This was made clear to the applicant during the summary hearing. The issue on the summary hearing was whether the Application was timely. The applicant was asked for submissions on this issue and was given a full opportunity to explain the reasons for her delay in filing her Application. The fact that a ruling was made against her does not mean that she was not given a fair opportunity to be heard. Although I understand the applicant’s frustration, it is important to state that at no time did I accuse her of being disrespectful or ignorant.

17The applicant has failed to establish compelling and extraordinary circumstances that outweigh the public interest in finality of decisions. It is clear that she disagrees with the Decision, however that is not a basis to reconsider the decision. For these reasons, the Request for Reconsideration is denied.