James v. Toronto Police Services Board, 2013 HRTO 1673

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 Date: October 4, 2013 Citation: 2013 HRTO 1673 Indexed as: James v. Toronto Police Services Board

APPEARANCES

Dale James, Applicant Osborne Barnwell, Counsel

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.

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 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. At paragraph 12 of that decision, the Tribunal stated:

The respondent submits further that the individual officers will be prejudiced by the amendment. It is premature to determine this issue because the individual officers have not been provided the RFOP. The applicant must deliver the RFOP to every individual officer that he seeks to add to the Application. These officers will then have an opportunity to respond to the RFOP and a decision will be made as to whether they should be added as individual respondents.

3By Case Assessment Direction dated March 26, 2013 ("CAD"), the Tribunal directed the applicant to deliver the RFOP to the individual officers that he wanted to add as 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 refused to delay further scheduling of the Application for the following two reasons:

one, it is unknown what officers, if any, will receive the RFOP and two, if they do receive the RFOP and file a response to it, a decision will then have to be made by the Tribunal as to whether they will be added as respondents.

4The applicant did not comply with the Tribunal's direction in the CAD. By Interim Decision dated June 5, 2013, 2013 HRTO 1003, the Tribunal held the Application would proceed against the Toronto Police Services Board ("TPSB") as the only named respondent.

5On July 2, 2013, the applicant sought reconsideration of the Tribunal's June 5, 2013 decision. The respondent responded on July 23, 2013.

DECISION

6The Request for Reconsideration is denied.

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 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

12The applicant is requesting reconsideration of the Tribunal's Interim Decision to proceed against the TPSB as the only named respondent. The applicant submits that he made several attempts to serve the individual respondents personally, but that it was not feasible given the number of officers involved and the timeline provided by the Tribunal. The applicant states he left the amended Application with an officer at 31 Division and with Legal Services at the TPSB. He asks the Tribunal to accept this as appropriate service.

13The respondent objects to this reconsideration request and makes the following submissions in support of its objection:

• The request for reconsideration is out of time. The Tribunal directed the applicant to serve the RFOP on the individual respondents on February 12, 2013. The reconsideration request was not brought until July 2, 2013, outside the 30-day time period;
• The applicant has made minimal efforts to serve the individual officers even though six officers have been served with a civil claim brought by the applicant;
• The applicant has failed to meet the test for reconsideration;
• The TPSB cannot accept service on behalf of the individual officers because they are separate entities in law. In addition, some of the racial profiling incidents go back to 2006 and several of the officers have retired and are no longer employed by the TPSB;
• The individual officers have had no opportunity to respond to the applicant's request to add them as respondents.

14The applicant has failed to comply with the Tribunal's direction to serve the RFOP on the individual police officers. That direction was given on February 12, 2013 and a date for compliance of April 30, 2013 was set out in the CAD of March 26, 2013. To date, the applicant has failed to serve the RFOP on the individual officers. All that he has done is deliver the amended Application to 31 Division and Legal Services. That does not comply with the Tribunal's direction.

15The RFOP would have alerted the individual officers of the applicant's intention to add them as respondents and would have provided them with an opportunity to respond. The individual officers would have had different responses to the particular allegations set out in the Application. In all likelihood, they would not have been represented by counsel for the TPSB.

16There are no compelling circumstances as to why the applicant disregarded the Tribunal's clear direction. Had the applicant complied and delivered the RFOP to Legal Services at the TPSB, it would be necessary for the Tribunal to determine whether this was proper service on the individual officers. Because the applicant did not deliver the RFOP, it is not necessary to answer this question.

17The applicant has failed meet the test for reconsideration in that he has failed to establish extraordinary circumstances that outweigh the public interest in finality of orders and decisions. The request for reconsideration is denied.

ORDER

18The request for reconsideration is denied.