Dwayne Manning v. Toronto Police Services Board, 2013 HRTO 2053

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

RECONSIDERATION DECISION

Adjudicator: Mary Truemner Date: December 11, 2013 Citation: 2013 HRTO 2053 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

introduction

1This Reconsideration Decision allows the Reconsideration Request by the applicant with respect to the dismissal of his Application filed March 1, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in services because of race, colour, ancestry and ethnic origin.

background

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. By May 22, 2013, when the applicant had failed to comply with the direction, the Tribunal issued a Decision dismissing the Application as abandoned, 2013 HRTO 877, (“the Decision”), noting that the applicant had also failed to respond to a Request for Order During Proceedings, and the time for doing so had passed.

3On July 23, 2013, the applicant filed a Request for Reconsideration of the dismissal (“the Request”). I issued an Interim Decision on October 24, 2013, 2013 HRTO 1791, (“the Interim Decision”), stating that I was satisfied that the applicant, through no fault of his own, did not receive notice of the hearing, and that I would grant his Request had he filed it in a timely way. I noted in the Interim Decision that the applicant provided submissions related to his illness with respect to the time leading up to the release of the Decision dismissing the Application, but not after the dismissal of his Application. I stated in the Interim Decision:

Without 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… 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

4I therefore directed the following in the Interim Decision:

The 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 email 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

5The applicant complied with my direction, and filed affidavits from himself and from a lawyer at a legal aid clinic with whom he met on an irregular basis, but who never represented him in his Application. She did, however, show him the Decision on July 15 or 16, 2013, and she referred him to the Human Rights Legal Support Centre.

reasons

6Pursuant to Rule 26.5.1, the Tribunal will not grant a Request for Reconsideration that is made more than 30 days following the Decision, unless the Tribunal determines that the delay in filing the Request was incurred in good faith and that no substantial prejudice will result to any person affected by the delay.

7Having read the affidavits and the submissions provided by the parties, I am satisfied that the applicant did not receive the Decision dismissing his Application until July 15 or 16, 2013. I note the absence of medical documentation to support the applicant’s explanation of his gradual healing between the Decision being released in May, and attending the legal aid clinic in July, but I also note that the applicant deposed that, during that time period, he was still recovering from his illness, he did not have exclusive control over his mailbox, and he did not own a computer so that checking email was a problem. Within approximately one week after he visited the legal aid clinic and actually received the Decision, the applicant filed his Reconsideration Request. The Reconsideration Request was supposed to have been filed within 30 days of the Decision, but instead was filed within 62 days of the Decision. The respondents did not provide any submissions addressing the additional 32 days it took for the applicant to file his Reconsideration Request and any resulting prejudice because of those additional days. I cannot find that the respondents were prejudiced substantially by the delay in filing the Reconsideration Request.

order

8In the circumstances, I find that the delay filing the Reconsideration Request was incurred in good faith and did not substantially prejudice the respondent, and I grant the applicant’s Reconsideration Request.

next step

9The parties appear not to have tried the Tribunal’s mediation service in the past. If they wish to do so now, they must file consent within 10 days, and the Tribunal will schedule a half day of mediation; otherwise, the Tribunal will schedule a 3-day hearing.

10I am not seized.