Cushnie v. Toronto Police Services Board, 2013 HRTO 63

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paulette Cushnie

Applicant

-and-

Toronto Police Services Board, Rhoel Ong, Tiffany Castell, Jeffrey Gough, Michael Lane, Michael Harnish and Katimarie Metzger

Respondents

A N D B E T W E E N :

Jamaal Cushnie

Applicant

-and-

Toronto Police Services Board, Rhoel Ong, Tiffany Castell, Jeffrey Gough, Michael Lane, Michael Harnish and Katimarie Metzger

Respondents

A N D B E T W E E N :

Perry Newton

Applicant

-and-

Toronto Police Services Board, Rhoel Ong, Tiffany Castell, Jeffrey Gough, Michael Lane, Michael Harnish and Katimarie Metzger

Respondents

A N D B E T W E E N :

Lorenzo Bartley

Applicant

-and-

Toronto Police Services Board, Rhoel Ong, Tiffany Castell, Jeffrey Gough, Michael Lane, Michael Harnish and Katimarie Metzger

Respondents

RECONSIDERATION DECISION

Adjudicator: Naomi Overend

Date: January 11, 2013

Citation: 2013 HRTO 63

Indexed as: Cushnie v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Paulette Cushnie, Jamaal Cushnie, Perry Newton and Lorenzo Bartley, Applicants

Paula Seymour, Counsel

Toronto Police Services Board, Rhoel Ong, Tiffany Castell, Jeffrey Gough, Michael Lane, Michael Harnish and Katimarie Metzger, Respondents

David A. Gourlay, Counsel

introduction

1The four applicants each filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on May 17, 2011. On September 16, 2011, the Tribunal issued an Interim Decision (2011 HRTO 1701) deferring these Applications pending the conclusion of ongoing SIU and OIPRD investigations, and a criminal proceeding against one of the applicants.

2The Tribunal wrote to the applicants on July 25, 2012 asking for an update on the proceedings to which these Applications were deferred. It received no response to the letter and so these Applications were dismissed as abandoned on September 26, 2012 (2012 HRTO 1842).

3On October 25, 2012, counsel for the applicants filed a Request for Reconsideration (Form 20) of the Tribunal’s Decision to dismiss. The Request was based on the fact that the applicants had asked counsel to respond to the July 25, 2012 letter, but that she had, through inadvertence, missed the deadline. The Request details the strained circumstances counsel found herself in with the departure of a colleague.

4The respondents filed brief submissions on November 30, 2012 opposing the Request and the applicants filed reply submissions on December 17, 2012.

decision and analysis

5Section 45.7 of the Code provides the Tribunal with authority and discretion 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.

6The 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.

7Rule 26.5 states that 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.

8The 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.

9Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal confirmed that reconsideration is not an opportunity to re-argue a case. Once the parties to an application 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.

10In their submissions on the Request for Reconsideration, the respondents state:

In regard to rule 25(1)(d), the respondents submit there are no factors in the request that outweigh the public interest in the finality of Tribunal decisions. The revival of these applications would be contrary to the principle of finality.

11However, these Applications were dismissed without the benefit of either written or oral submissions. The Tribunal’s interest in the finality of its Decision is somewhat diminished by the manner in which the Decision was made. Counsel for the applicants advises that the proceedings to which the Applications had been deferred remain ongoing, and so counsel’s error did not prevent the Tribunal and parties from advancing these proceedings along.

12Finally, the conclusion of that Decision – namely, that the applicants had abandoned their respective Applications -- is clearly mistaken in light of counsel’s submissions that she had been instructed by her clients to respond to the Tribunal’s correspondence. It would be neither fair nor just to deprive the applicants of their ability to proceed with these matters solely on the basis of their counsel’s inadvertence.

13I am of the view that these factors outweigh the Tribunal’s interest in the finality of its Decision. Accordingly, the Request for Reconsideration with respect to the dismissal of Applications 2011-08936-I, 2011-08937-I, 2011-08938-I, 2011-08939-I is granted.