HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Adetokubo Adeoye
Applicant
-and-
Regional Municipality of Peel Police Services Board
Respondent
RECONSIDERATION DECISION
Adjudicator: Leslie Reaume
Indexed as: Adeoye v. Regional Municipality of Peel Police Services Board
WRITTEN SUBMISSIONS
Adetokubo Adeoye, Applicant
Self-represented
Regional Municipality of Peel Police Services Board, Respondent
Patricia G. Murray, Counsel
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal with respect to policing services because of race, colour and age.
2By Case Assessment Direction dated March 22, 2012, the Tribunal set this matter down for a preliminary hearing by conference call to determine whether the Application should be dismissed, in whole or in part, on the basis that another proceeding has appropriately dealt with the substance of the Application.
3The preliminary hearing was set for June 18, 2012 from 9:30 to 12:30. The applicant did not appear on the call. After 30 minutes, submissions were received from the respondent and an oral decision was made dismissing the Application as abandoned.
4The applicant wrote to the Tribunal on June 21, 2012, before a written decision was issued confirming the dismissal of the Application. He requested that the Tribunal re-schedule the hearing. The applicant explained that he was in custody at the time of the conference call. He also indicated that he attempted to connect to the call at approximately 2:15 from the courthouse immediately upon his release. It is not disputed that the applicant was arrested by Peel Police on Thursday, June 14, 2012 and that he was released on bail on the day of the conference call, Monday, June 18, 2012.
5An oral decision was made dismissing the Application. The applicant is essentially requesting that the Tribunal reconsider that decision on the basis of his explanation for his failure to attend the hearing. The respondent opposes the request.
6For obvious reasons, the applicant’s request was not filed in accordance with the Tribunal’s Rules governing reconsideration requests since he was not in attendance when the oral decision was made dismissing his Application and a written decision confirming the ruling had not been issued. However, the applicant filed material explaining his absence and was also given an opportunity to file further submissions in response to the submissions of the respondent. His submissions are consistent with what is required as a Request for reconsideration under Rule 26.3 and as a result, I consider it appropriate to waive compliance with any further requirements under Rule 26.
7Section 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.
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 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.
9The 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.
10The respondent made a number of submissions in writing and set out an accurate chronology of the events leading up to the teleconference on June 18, 2012.
11The Tribunal issued a Notice of Confirmation of Hearing scheduled for June 18, 2012 which clearly set out the consequences for failing to attend.
12In addition, the respondent argues that the applicant has a history of non-compliance with the Tribunal’s rules. On May 4, 2012 the Tribunal wrote to the applicant via his “gmail” email address advising the applicant that the Notice of Hearing had been returned to the Tribunal marked “return to sender”. The Tribunal reissued the Notice of Hearing and required the applicant to provide it with his updated address.
13On May 11, 2012, the applicant called the Tribunal and indicated that he would confirm his availability for the June 18 conference call by the following week. The applicant failed to provide an updated address to the Tribunal and the respondent and failed to confirm his attendance at the June 18, 2012 hearing as he indicated he would do.
14On June 5, 2012 the Tribunal corresponded with the applicant through his email address and again advised the applicant that he was required to provide an updated address, current contact information. He was also required to confirm his participation in the June 18 conference call immediately with a “reply all” message to the Tribunal and respondent counsel. The applicant failed to comply with this request by the Tribunal.
15The applicant failed to appear on June 18, 2012. As a result of the history of this matter, I was satisfied that the applicant had been properly advised of the hearing, had failed to comply with the Tribunal’s requests to confirm his attendance and had chosen not to attend, all of which formed the basis for my oral decision to dismiss the Application as abandoned.
16The respondent submits that the applicant should have had someone else contact the Tribunal to advise of his circumstances and request an adjournment of the call. The applicant was invited to respond to the submissions of the respondent and did so by letter dated October 17, 2012. The applicant did not address the submission of the respondent that despite his detention, he should have arranged for someone else to advise the Tribunal and the respondent of his circumstances in advance of the hearing.
17I also find the applicant’s submission that he called into the conference call at 2:15 p.m. nonsensical when the call was scheduled from 9:30 to 12:30. The applicant did not explain how he was able to dial into the call using the conference call codes contained in the Notice of Hearing, from the courthouse, immediately upon being released on bail. He also did not explain why he did not call the Tribunal when he was unable to connect to the conference call and why he waited three more days before providing the Tribunal with an explanation for his failure to attend.
18I agree that there is significant prejudice to the respondent who prepared for and attended the hearing on June 18, 2012, as a result of the applicant’s failure to give notice. That prejudice is exacerbated by the fact that the applicant failed to indicate his intention to participate in the call after having been directed to do so twice by the Tribunal. I am not persuaded that the applicant ever intended to participate in the call.
19The applicant has not established any basis for reconsideration of my decision to dismiss this Application as abandoned. Even if I had not rendered an oral Decision on June 18, 2012, I would nevertheless deny the applicant’s request to reschedule the hearing on the basis that he has not provided a sufficient explanation for his failure to notify the Tribunal of his inability to participate.
20For those reasons, the applicant’s Request is denied.
Dated at Toronto, this 11th day of February, 2013.
”signed by”
Leslie Reaume
Vice-chair