HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rick Burns
Applicant
-and-
Thunder Bay Police Service and Robert Herman
Respondents
RECONSIDERATION DECISION
Adjudicator: Maureen Doyle
Indexed as: Burns v. Thunder Bay Police Service
APPEARANCES
Rick Burns, Applicant ) Christopher Watkins, Counsel
Thunder Bay Police ) Robert Edwards, Counsel and Robert Herman, Respondents )
[1] On June 18, 2012, the Tribunal issued its Decision in this Application, Burns v. Thunder Bay Police Service, 2012 HRTO 1196, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.
background
[2] The Tribunal’s Decision dismissed the application as abandoned when the applicant did not attend the Summary Hearing.
THE REQUEST FOR RECONSIDERATION
[3] The Request for Reconsideration completed by the applicant provides the following reasons why the Tribunal should reconsider its Decision:
a. There are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been determined earlier
b. You were entitled to notice but, through no fault of your own, did not receive notice of the proceeding or a hearing
c. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance
d. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.
[4] From the date of the Decision, the applicant sent several emails to the Tribunal expressing his disagreement with it. The applicant sent an email to the Tribunal on July 23, 2012, indicating that the email was regarding “BASIS FOR RECONSIDERATION 2011 09776 S” and stating “Failure of retained lawyer to attend and argue facts of the case AND FAILURE OF RETAINED COUNSEL TO FOLLOW INSTRUCTION OF THE SUBSTANTIVELY DISABLED CLIENT” [emphasis in original]. On July 24, 2012, he filed form 20, a Request for Reconsideration.
[5] In an email dated July 25, 2012, the applicant requested an “oral hearing with the vice chair to set out his position”, indicating that the request was being made as an accommodation of his disability in order to provide him with access to the process.
[6] Requests for Reconsideration are normally conducted in writing, but on August 22, 2012 the Tribunal issued a Case Assessment Direction (“CAD”) granting the applicant’s request for an oral hearing in the matter of his Request for Reconsideration. The CAD directed that the applicant be prepared to make submissions regarding why his Request for Reconsideration should be granted, and also to be prepared to make submissions regarding why, if the Request for Reconsideration were to be granted, his Application would not be dismissed as having no reasonable prospect of success. The CAD also stated that the respondents would not be required to make submissions at the hearing but that should the Tribunal require their submissions, or should they wish to make submissions, a further opportunity would be scheduled for that purpose.
[7] The hearing by teleconference for the Request for Reconsideration convened as scheduled, on October 19, 2012. Mr. Chris Watkins, a lawyer, attended on the teleconference hearing and advised that he was prepared to act for the applicant in this matter, but that he required an adjournment of the teleconference hearing. The adjournment of the teleconference hearing was granted, but given the fact that an oral hearing for this Request for Reconsideration had been scheduled as an accommodation to the applicant’s stated need to explain his position orally, and given the fact that he was now to be represented by counsel, no further hearing date was set. Rather, counsel for the applicant was directed to provide written submissions in support of the Request for Reconsideration.
[8] The Tribunal did not direct the respondents to provide submissions, and has received no submissions from the respondents.
DECISION
[9] Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.
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.
[10] The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008). Most relevant to this Decision is Rule 26, which states:
26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision
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.
11The 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.
Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.
12As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of