HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Julie Szabo
Applicant
-and-
York University and Lillie Lum, York University and Douglas Peers, Comcare Health Services and Shelley Dietz, University of Toronto Faculty of Dentistry, Miller Thompson LLP, Legislative Assembly of Ontario, Cheri DiNovo, Carly Jones and Susan Rogers, Women’s College Hospital, Family Practice Health Centre, Saint Elizabeth Health Care, Shirlee Sharkey, Cheryl Johnson, Trish P. Maxwell and Neilia Cabral
Respondents
RECONSIDERATION DECISION
Adjudicator: Alison Renton
Indexed as: Szabo v. York University
WRITTEN SUBMISSIONS
Julia Szabo, Applicant
Self-represented
York University and Lillie Lum, Respondents
Joanna Rainbow, Counsel
York University and Douglas Peers, Respondents
Joanna Rainbow, Counsel
Comcare Health Services and Shelley Dietz, Respondent
Margaret Szilassy, Counsel
University of Toronto Faculty of Dentistry, Respondent
Sari Springer, Counsel
Miller Thompson LLP, Respondent
Erik Marshall, Counsel
Legislative Assembly Of Ontario, Cheri Dinovo, Carly Jones And Susan Rogers, Respondents
No Written Submissions
Women’s College Hospital, Family Practice Health Centre, Respondents
Janet Zive, Counsel
Saint Elizabeth Health Care, Shirlee Sharkey, Cheryl Johnson, Trish P. Maxwell and Neilia Cabral, Respondents
Margaret Taylor, Representative
1The applicant filed 11 different Applications against various respondents alleging discrimination on different grounds contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). None of the respondents has been required by the Tribunal to file a Response.
2In a Decision, 2012 HRTO 659 (“the Decision”), the Tribunal dismissed the Applications after the applicant failed to participate in a summary hearing conference to which all the respondents participated. The respondents made submissions about why, in their respective opinions, the Applications against them should be dismissed.
3The applicant filed Requests for Reconsideration (“the Requests”) in eight of the eleven Applications. The Tribunal requested that the respondents provide a Response to the Request which pertained specifically to it. With the exception of Tribunal file 2011-09412-I, in which the Legislative Assembly of Ontario, Cheri DiNovo, Carly Jones and Susan Rogers were named as respondents, the remaining respondents filed Responses to the Requests. Each submitted that the Request pertaining to them should be dismissed.
4The Tribunal has considered all of the information before it. For the reasons set out, the Requests are dismissed.
background
5Initially, the applicant filed six Applications against various respondents. By Case Assessment Direction dated September 14, 2011, the Tribunal determined that a consolidated summary hearing would be held by teleconference to determine whether these Applications would be successful on the basis of reasonable prospect of success.
6The applicant filed an additional five Applications against different respondents. Another Case Assessment Direction, dated November 8, 2011, was issued by the Tribunal which stated that the five new Applications would also proceed by way of summary hearing in addition to those identified in the previous Case Assessment Direction.
7A Notice of Summary Hearing, dated December 21, 2011, was issued by the Tribunal scheduling the Summary Hearing by teleconference for March 26, 2012. The parties were given instructions on how to call-in to participate during the Summary Hearing.
8The applicant subsequently wrote to the Tribunal requesting, amongst other things, to adjourn the Summary Hearing. By letter dated February 1, 2013, the Tribunal advised the applicant that she was required to copy the respondents on her communications with the Tribunal, in accordance with the Tribunal’s Rules of Procedure. It directed the applicant to file a Request for Order During Proceedings (“RFOP”), deliver it to the respondents and file it, along with proof of delivery, with the Tribunal if she was seeking an adjournment of the summary hearing.
9The applicant wrote a letter to the Tribunal dated February 16, 2012 in which she requested that the Tribunal “…postpone my cases due to medical reason [sic] until August 2012… There will be witnesses and interpreter in some of my cases”. She attached a copy of a medical note dated January 17, 2012 from an “Idy Ko, PGY 2 with Dr. Chen” and Dr. Betty Chen at Women’s College Hospital, Family Practice Health Centre (which was also a respondent). The typed note states, “Due to medical reasons Ms. Szabo will be unable to attend the hearing on March 26, 2012. Please postpone her case until August 2012”.
10The same day, the applicant also filed RFOPs in files 2010-07289-I; 2011-09412-I; 2011-09636-I; 2011-09716-I and another Application which is not the subject of the Requests. In the RFOPs, the applicant requested to add a party, an extension of time, and that her Applications be “postponed” until August 2012 due to a medical reason and be re-scheduled in-person. She referenced her medical note from Dr. Chen, although she did not attached a copy of it to the RFOPs.
11The Tribunal communicated with the applicant by email dated March 6, 2012 and letter dated March 14, 2012. It noted that the applicant had not delivered her RFOP to all of the respondents and directed her to do so. It also directed the applicant to provide a copy of her January 17, 2012 medical note to the respondents, as it was referenced in the RFOPs, but had not been provided to the respondents. Finally, the Tribunal advised the applicant that her adjournment request would not be considered until it received confirmation that all of the respondents had received the RFOPs and the medical documentation.
12When the applicant failed to communicate again with the Tribunal, or comply with its directions, the Tribunal issued another Case Assessment Direction, dated March 21, 2013. In it, the Tribunal denied the applicant’s adjournment request, indicated that each Application would be addressed separately so that only the parties to a specific file would be present on the call while that matter was being addressed, and warned that the Applications may be dismissed as abandoned if the applicant failed to call into the hearing.
13On March 26, 2012, approximately 10 minutes before the Summary Hearing was scheduled to commence, the applicant telephoned the Tribunal and spoke with its staff to advise that “for medical reasons” she was not able to participate in the Summary Hearing. This information was conveyed to me just prior to the commencement of the Summary Hearing, which I relayed to the respondents at the beginning of the conference call.
14At the Summary Hearing, the respondents in six Applications advised me that they had not received either the applicant’s RFOP requesting adjournment of the Summary Hearing, or her medical note in support of her adjournment request. The respondents in five Applications advised me that they had received the applicant’s RFOP, but not her medical note.
15The Tribunal heard the respondents’ submissions on whether or not the Summary Hearing should proceed given the last minute adjournment request made by the applicant. Each submitted that the Application pertaining to them should be dismissed. After hearing these submissions, the Tribunal issued an oral decision dismissing the Applications, with written reasons to follow. Those reasons were provided in the Decision.
16Specifically, at para. 15, I wrote:
The applicant has not complied with the Tribunal’s directions issued to her in its March 6, 14 and 21, 2012 communications requiring her to send all of the respondents her adjournment request RFOP and medical note. Apart from a telephone call minutes before the summary hearing was scheduled to commence and after her adjournment request had been denied, the applicant has not communicated with the Tribunal since the March communications were issued to her. Six of the respondents against which the applicant has filed an Application did not receive the applicant’s RFOP requesting the adjournment and none of the respondents received her medical documentation.
17Subsequent to March 26, 2012, the applicant sent an email to the Tribunal dated March 27, 2012 in which she wrote:
I had to go to emergency department in the hospital and MD, obstetrician’s recommendation was to avoid stressful situation until my baby will be delivered. My baby is due to June; therefore, I ask to postpone all my cases until August, 2012 as I asked before. Medical note was submitted to HRTO before.
18The applicant also filed a letter dated April 5, 2012 reiterating this point, amongst other issues, and attached a copy of a note dated March 26, 2012. The note is signed by what looks like a “G. Liu”, who is not identified, on Sunnybrook Health Sciences Centre’s letterhead on which it is handwritten:
To Whom It May Concern:
Re: Szabo, Julia
This is to confirm that Ms. Szabo was at Sunnybrook Obstetrical triage on March 26, 2012. Should you have any concerns, please do not hesitate to contact me.
19Lastly, she filed the Requests, on which she marked off grounds (a) and (d) as the basis upon which the Requests are made. In her Requests, she states that she had to go to the emergency department on the day of the Summary Hearing.
law and analysis
20Rule 25.5 of the Tribunal’s Rules of Procedure sets out the limited circumstances in which reconsideration may be granted:
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.
21It is also useful to consider the Tribunal’s Practice Direction on Reconsideration, which states in part:
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.
22As 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 rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.
23Reconsideration is not an opportunity for a party to re-argue a case or correct the deficiencies in its case. See Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34.
24The applicant says, in support of her Requests, that she had to attend the emergency department on the day of the Summary Hearing. She submitted a letter on hospital letterhead from an unidentified individual confirming that she was at Sunnybrook Obstetrical triage on the day of the Summary Hearing.
25In some situations, a medical note like this may be sufficient to grant an applicant’s request for reconsideration. However, in these Applications it is not.
26The letter does not contain the time that she was at the hospital. More importantly it does not provide an explanation as to why the applicant was unable to participate in the Summary Hearing. It does not indicate that the applicant was incapacitated to the extent that she was unable to participate in the Summary Hearing unlike those circumstances found in Goodridge v. Toronto Police Services Board, 2011 HRTO 2208.
27Further, there is the history of the applicant’s conduct in these Applications. The applicant’s Requests appear to be another opportunity to justify her previous adjournment request, which had been denied. The applicant had requested a five month adjournment prior to the Summary Hearing which was denied. The denial was after the Tribunal issued communications to the applicant on three occasions indicating that she had to file her adjournment request and medical notation in support of her request with the respondents. The Tribunal indicated that her adjournment request would not be considered until she complied with its directions. The applicant failed to comply with these directions, failed to provide any explanation as to why she did not comply with the Tribunal’s directions, and failed to communicate with the Tribunal from early February 2012 until minutes before the Summary Hearing was scheduled to commence.
28The Tribunal has an obligation to dispose of applications fairly, justly and expeditiously. See section 40 of the Code and Rule 1.1 of the Tribunal’s Rules of Procedure. This duty is not only for applicants, but also respondents, who may expend significant resources responding to human rights Applications. The Tribunal has commented on the responsibilities of the parties appearing before it. See Ouwroulis v. New Locomotion, 2009 HRTO 335, at paras. 4 to 7, as cited in the Decision at para. 14.
29Based upon the above, I do not find that the applicant’s Request raises “new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier” pursuant to Rule 25.5(a) or “other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions” pursuant to Rule 25.5(d).
30Accordingly, the applicant’s Requests are denied.
Dated at Toronto, this 6th day of May, 2013.
”signed by”
Alison Renton
Vice-chair