Muldoon v. Ontario (Community Safety and Correctional Services), 2013 HRTO 1415

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Muldoon Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Minister of Community Safety and Correctional Services Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta Date: August 16, 2013 Citation: 2013 HRTO 1415 Indexed as: Muldoon v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Paul Muldoon, Applicant Joyce Thomas, Counsel

Ontario (Community Safety and Correctional Services), Respondent Paul Meier, Counsel

Introduction

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”), alleging discrimination with respect to employment because of disability and reprisal. The Application is scheduled to be heard on August 19, 20 and 21, 2013.

2This Interim Decision addresses a Request for Order during Proceedings filed by the applicant on July 25, 2013, in which he seeks:

(a) an Order “setting aside” the Interim Decision of the Tribunal, dated July 10, 2013, 2013 HRTO 1200 (as part of the submissions provided, the applicant attempts to be rearguing the issue of delay in filing addressed in the July 10, 2013 Interim Decision);

(b) an Order permitting the applicant to amend this Application;

(c) an Order consolidating this Application with Tribunal file 2013-14263-I, filed on February 28, 2013; and

(d) an adjournment of the hearing dates scheduled for August 19-21, 2013.

3The respondent filed a Response to the Request for Order on August 12, 2013, in which it opposes the requests made by the applicant.

4For the reasons that follow, the Request for Order is denied in its entirety.

RECONSIDERATION REQUEST

5Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request that it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, 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.

It is also useful 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.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

6Although a Form 20 was not filed, the applicant’s request that the Interim Decision of July 10, 2013 be “set aside”, amounts to a reconsideration request. As the Interim Decision in question finally disposes of a number of the allegations raised by the application as untimely, I have treated the applicant’s request that the Interim Decision be “set aside” as a reconsideration request.

7In addition, while counsel for the applicant does not specifically identify which of the factors in Rule 26.5 she relies upon, I have considered her arguments in light of all four factors.

8The applicant attempts to reargue the delay issue. He argues that additional documents filed in November, 2011 were not considered by the Tribunal in arriving at its conclusion in the Interim Decision of July 10, 2013 that a number of allegations were untimely. If the materials filed in November 2011 had been considered, counsel argues, a series of events of discrimination would have been established, thereby rendering the events dismissed in the Interim Decision as untimely within the time limits contemplated under the Code. Counsel also attempts to reargue the good faith issue in the event that the Tribunal continues to find the allegations were filed out of time.

9The Tribunal outlined the allegations contained in the Application in its CAD dated June 6, 2013 and invited the applicant’s submissions on the issues raised. Having received those submissions, the Interim Decision, dated July 10, 2013, addressed the applicant’s present arguments squarely, finding firstly that the allegations dismissed as untimely were “sufficiently discrete from the timely allegations that they cannot be viewed as part of a series of incidents, and secondly that the applicant did not “provide any explanation for the delay in pursuing the allegations” in question.

10As stated in a number of Tribunal decisions, a Request for Reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. The thrust of the submissions made merely reiterate arguments made earlier in the process. It is evident that the applicant disagrees with the Tribunal’s ruling. However, he has presented no basis to reconsider the decision. The request to “set aside” or reconsider the Interim Decision in question is denied.

REQUEST TO AMEND APPLICATION

11Rule 1.7 (c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just and expeditious resolution of any matter before it, the Tribunal may “allow any filing to be amended”.

12In determining whether requests to amend Applications will be granted, the Tribunal generally considers the nature of the proposed amendments, the timing of the request to amend and the prejudice to the respondent. See Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

13The applicant’s request to amend his Application is being made one month in advance of hearing dates set well in advance. He requests that all materials filed subsequent to the filing of his Application on September 3, 2010, form part of the pleadings in this matter. The respondent objects to the request.

14Having reviewed the materials filed by the parties, I find that the requested amendments would significantly expand the scope of these proceedings, necessitate opportunities for the parties to amend their Response and Reply documents and, given the nature of the amendments sought, require the cancellation of the hearing dates already set.

15The applicant has not persuaded me that the allegations relate to the substance of the issues in dispute in the present Application. In addition, given the fact that the request is made following the original exchange of pleadings, mediation, exchange of arguably relevant documents and on the eve of the hearing commencing, permitting the amendment of the Application to include all possible allegations contained in all documents sent to the Tribunal following the filing of the original Application would be inconsistent with the Tribunal’s mandate to provide for a fair, just and expeditious resolution of matters before it.

16Accordingly, the Request to amend the Application is denied.

REQUEST TO CONSOLIDATE APPLICATIONS

17Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear Applications together.

18In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (CHRT), which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

19The present Application is scheduled to be heard beginning next week. The scope of the hearing to take place has been clearly defined by the Tribunal in its earlier CADs and Interim Decisions. The events in question predate the substance of the matters raised in the subsequent Application.

20The Application filed on February 28, 2013 (HRTO File 2013-14263-I) was deferred on July 17, 2013, on the consent of the parties, pending the conclusion of grievance arbitration proceedings which are scheduled to take place over the course of 5 days in the fall of this year, beginning next month.

21The applicant has not persuaded me that there is a good reason to consolidate these Applications, given the above. Accordingly, the request to consolidate the two Applications is denied.

REQUEST FOR ADJOURNMENT

22The request for adjournment, also couched as a request for deferral in the submissions (although the grievance processes to which the substance of this Application relates have concluded), was made on July 25, 2013, less than one month in advance of the hearing dates that had been scheduled by way of a Notice of Rescheduled Hearing dated February 1, 2013.

23The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states that:

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a mediation or hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

24On May 31, 2013, the applicant advised the Tribunal and the respondent of change of counsel. Counsel for the applicant points to the fact that her firm was recently retained, that counsel did not understand that both Applications had not been deferred and that counsel is unavailable on the hearing dates in question.

25In Vallentyne v. Royal Canadian Legion, 2009 HRTO 534 at para. 6 the Tribunal held:

The decision of a party to retain counsel after a hearing is scheduled is not the type of circumstance that would justify a request for an adjournment. Absent exceptional circumstances, a party must find counsel who is available on the date already scheduled.

26As such, there are no extraordinary or exceptional circumstances that would warrant a departure from the Tribunal’s normal practice. The adjournment request is denied and the hearing dates will proceed as scheduled. A Registrar’s letter to that effect was sent to the parties confirming the above on August 15, 2013.