Manning v. Toronto Police Services Board, 2013 HRTO 1791

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dwayne Manning

Applicant

-and-

Toronto Police Services Board, Chief of Police William Blair, Constable Nicholas Chaudhary, Constable Sean Moxham

Respondents

INTERIM DECISION

Adjudicator: Mary Truemner Date: October 24, 2013 Citation: 2013 HRTO 1791 Indexed as: Manning v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Dwayne Manning, Applicant Bruce Best, Counsel

Toronto Police Services Board, Chief of Police William Blair, Constable Nicholas Chaudhary, Constable Sean Moxham, Respondents Michele Wright, Counsel

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”).

2The Tribunal scheduled a hearing for this Application to be heard May 28-30, 2013. Pursuant to the Tribunal’s Rules of Procedure, the applicant was to have filed documents by April 12, 2013, but did not do so. The Tribunal issued a Case Assessment Direction (“CAD”) on May 14, 2013, requiring the applicant to file his overdue documents immediately. The CAD was sent by regular mail and by email to both the applicant and to the applicant’s mother whose apartment is in the same building as the applicant’s. By May 22, 2013, when the applicant had failed to comply with the direction, the Tribunal dismissed the Application as abandoned, 2013 HRTO 877, noting that the applicant had also failed to respond to a Request for Order During Proceedings, and the time for doing so had passed. The Decision dismissing the Application was sent by regular mail and by email to both the applicant and to the applicant’s mother.

3On July 23, 2013, the applicant, who is now represented by counsel from the Human Rights Legal Support Centre, filed a Request for Reconsideration (“the Request”) of the dismissal. His submissions state 1) that he was not aware that the hearing had been scheduled; 2) that he was not aware of how his mother, with whom he has had almost no contact in the last six months, became his alternative contact; and 3) that he was not aware that the Application had been dismissed until July 2013.

4The respondents filed a Response to the Request for Reconsideration on August 9, 2013.

RECONSIDERATION REQUEST

5Section 45.7 of the Code provides the Tribunal with explicit authority to reconsider its 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.

6Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration, as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers. Rule 26 reads, in part, as follows:

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 and orders.

7The 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.

8The Request before me cites Rules 26.5(b) and (d) as the basis for granting reconsideration.

ANALYSIS

Did the applicant not receive notice of the hearing through no fault of his own?

9The applicant’s submissions state that he suffers from chronic mental health issues, and for most of the winter and spring of 2013, he was socially withdrawn, spending “almost every moment” of his time in his apartment with the exception of when he left it to get food.

10The applicant had been represented by counsel until July 11, 2012 when his counsel filed correspondence with the Tribunal withdrawing his representation because he could not obtain instructions. This counsel (“previously retained counsel”) confirmed an email address for the applicant, and provided the Tribunal with the applicant’s last known address. The street was the same as indicated on the Application, but the unit number was different.

11In response to a letter the Tribunal mailed and emailed to the addresses provided by the applicant’s previously retained counsel, the applicant filed at the Tribunal on September 5, 2012 a letter dated July 30, 2012, with the assistance of a lawyer at a legal aid clinic (“the clinic lawyer”), confirming his intent to proceed with his Application and confirming that the Tribunal was to contact him at his “mailing address on record”, not, notably, at the legal aid clinic which was assisting him. Subsequently, the Tribunal repeatedly but unsuccessfully tried to contact the applicant directly through mail and email at the addresses provided by his previously retained counsel in order to obtain the applicant’s availability for the scheduling of a hearing.

12On November 16, 2012, the clinic lawyer at the clinic emailed the Tribunal, copying the applicant with the email address that the Tribunal was also using for the applicant, to confirm that the applicant had received a written request emailed by the Tribunal on October 1, 2012 to the applicant. The clinic lawyer indicated in her letter that she was assisting the applicant in obtaining representation. She commented that it appeared to her that the applicant had health problems making it difficult for him to communicate with the Tribunal. She wrote that the applicant would like an update as to the status of his Application.

13On January 23, 2013, the Tribunal emailed the parties and the clinic lawyer, asking if she was retained to represent the applicant. On January 28, 2013, the clinic lawyer replied, copying the applicant, to say that she was not retained, and to say that she was unable to contact the applicant, but she indicated that she had referred him to the Human Rights Legal Support Center for legal assistance. She also stated in her message:

[Tribunal staff] asked for an alternative contact for Mr. Manning and I am passing you his mother's contact information:[mothers e-mail and phone number].

14On January 28, 2013, the Tribunal e-mailed the applicant's mother, asking if she was the applicant's alternate contact, and, the next day, e-mailed to the applicant directly the message of the day before to his mother, copying his mother and the respondents’ counsel. Immediately after, the applicant's mother e-mailed the Tribunal, copying the parties, to confirm she was the applicant's alternative contact. She provided her mailing address which was the exact same as the mailing address indicated in the applicant’s Application. The unit number for this mailing address was different from the unit number provided by the applicant’s previously retained counsel. It would appear that the applicant moved to his own unit in his mother’s building after filing the Application.

15On January 31, 2013, the respondents’ counsel e-mailed the Tribunal to confirm that the applicant had agreed that the hearing could be scheduled the last week of April or the first week of May. It appears that the applicant’s mother agreed on behalf of the applicant without authority to do so. There is no indication that she was the applicant’s representative, or even his alternate contact as that status was suggested by the clinic lawyer who was not retained by the applicant.

16The Tribunal immediately responded to the parties by e-mail, using the applicant’s and his mother’s e-mail addresses, to say those weeks were no longer available, but suggested to the parties other dates in May.

17On February 1, 2013, the applicant's mother wrote to the Tribunal stating:

May 29 – 30 is best for me - I need to book this time off work. Please confirm asap.

18On February 8, 2013, having received acceptance of the dates from the respondents’ counsel, the Tribunal sent Notice of Confirmation of Hearing by regular mail to the applicant “c/o” his mother at her address. It was not sent to his address provided by the counsel he had last retained, nor was it sent to his e-mail address. There is nothing in the Tribunal’s file indicating that the applicant agreed to the date or received the Notice of Confirmation of Hearing. The question I must determine is whether the applicant actually received the Notice, and, if not, whether it was through no fault of his own.

19The applicant states in his Request for Reconsideration that his mother, with whom he states he had almost no contact, was not his legal representative and did not advise him of any correspondence relating to his Application. He states that the first time he was aware that the hearing had been scheduled was in July of 2013 when he met again with the clinic lawyer who connected him to the presently retained lawyer at the Human Rights Legal Support Centre.

20The file confirms only that the applicant’s mother received a notice of the hearing. Also, the communications from all of the lawyers who have assisted the applicant may be summarized as indicating serious concerns about the applicant’s capacity to participate in the Tribunal’s proceedings given his mental health. The Request for Reconsideration states that the applicant suffers from significant chronic mental health issues first diagnosed in February 2012 following which he was admitted to the inpatient psychiatry mental health unit of St. Michael’s Hospital where he remained for several months that winter. The Request for Reconsideration states that for most of the winter and spring of 2013, the applicant was socially withdrawn, spending almost every moment in his apartment, leaving only to get food. His recently filed medical documentation from St. Michael’s Hospital appears to confirm a diagnosis for the applicant of anti-social personality disorder and schizophrenia. The documentation also appears to confirm that in December 2012, the applicant was not answering his door and that his mother was unable to assist in making contact with the applicant. The documentation therefore supports his submissions filed by his newly retained counsel that the applicant was socially withdrawn for the winter and spring of 2013, and that his mother did not provide him with the Notice of Confirmation of Hearing.

21The Request for Reconsideration states that the applicant’s mental health has improved and he is now in a position to instruct counsel, and wishes to pursue the allegations in his Application.

22Given the fact that the applicant’s mother should not have been treated as the applicant’s representative without his consent, and that it was never clear that the applicant’s mother was able to contact her son or deliver documents to him, in the context of the applicant’s mental health problems, I am satisfied that the applicant, through no fault of his own, did not receive notice of the hearing. Had he filed his Request for Reconsideration in a timely way after the dismissal of his Application on May 22, 2013, I would grant his Request pursuant to Rule 26.5(b).

Delay in making the Request for Reconsideration

23Rule 26.5.1 states:

26.5.1 A Request for Reconsideration made more than 30 days following the Decision will not be granted unless the Tribunal determines that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

24The applicant did not file his Request in a timely way. The applicant did not file his Request for Reconsideration until roughly two months after the Decision dismissing his Application was issued on May 22, 2013. The applicant’s submissions state that the lawyer from the legal aid clinic, which had previously assisted him, told him on July 15, 2013 that his Application had been dismissed, and that he was unaware of the Decision before this date. His Request was filed 8 days later.

25The applicant’s submissions refer to the applicant’s mental health condition “for most of the winter and spring of 2013” resulting in him not leaving his apartment and having no contact with anyone “January to April 2013”. His submissions are silent with respect to the months of May and beyond.

26Without medical evidence, I am unable to conclude good faith for the applicant’s delay in filing the Request for Reconsideration for health reasons or disability because I am unable to assume that the applicant’s condition in May of 2013 prevented him from reading his e-mail or mail attaching the Decision dismissing the Application. (It would appear that the Decision was sent to the mailing address for his own unit and to his e-mail address, as well as to his mother’s unit and to her email address, on May 22, 2013). Nor am I able to conclude that his health or any mental disability played a role in his failure to update the Tribunal with respect to his contact information as he is required to do pursuant to Rule 1.13 the Tribunal’s Rules of Procedure.

27The applicant is therefore directed to file within 30 days an affidavit in which he states where he resided in May, June and July 2013, and why he did not retrieve e-mail messages sent to him during that time at [the Applicant’s email address]. He must also state if and when he moved from [the Applicant’s mailing address], and, if he moved, where he moved to and how he arranged for any mail sent to him at [his address] to be collected by him or on his behalf in May, June and July 2013. Finally, if he wishes to rely on any health problems to demonstrate good faith for the delay in filing his Request, he must file within 30 days medical documents that justify his inaction from May 22, 2013 until July 15, 2013.

28The respondents may file submissions in response within 30 days of receiving the documents from the applicant.

29Upon receipt of the parties’ documents, the Tribunal will consider the issue of whether the delay in filing the Request for Reconsideration was incurred in good faith and no substantial prejudice will result to any person affected by the delay, or the Tribunal will issue further directions.

30If the applicant does not file any documents within 30 days, then the Request will be considered abandoned, and the Tribunal will dismiss it.

DIRECTIONS

31The applicant is directed to file within 30 days an affidavit in which he states where he resided in May, June and July 2013, and why he did not retrieve e-mail messages sent to him during that time at [the Applicant’s email address]. He must also state if and when he moved from [the Applicant’s mailing address], and, if he moved, where he moved to and how he arranged for any mail sent to him at [his address] to be collected by him or on his behalf in May, June and July 2013. Finally, if he wishes to rely on any health problems to demonstrate good faith for the delay in filing his Request, he must file within 30 days medical documents that justify his inaction from May 22, 2013 until July 15, 2013.

32The respondents may file submissions in response within 30 days of receiving the documents from the applicant.

33I am not seized.