Christie v. Lance Krasman Memorial Centre for Community Mental Health, 2014 HRTO 1289

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Matthew Christie

Applicant

-and-

Lance Krasman Memorial Centre for Community Mental Health

Respondent

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta

Date: August 29, 2014

Citation: 2014 HRTO 1289

Indexed as: Christie v. Lance Krasman Memorial Centre for Community Mental Health

WRITTEN SUBMISSIONS

Matthew Christie, Applicant

Self-represented

Introduction

1This is a reconsideration request of a decision dismissing an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 4, 2012, alleging discrimination with respect to employment because of disability. Although the social area identified by the applicant was employment, a review of the Application suggested that the allegations may also be characterised as concerning receipt of services and consideration of the Application proceeded on that basis.

2Following a summary hearing teleconference, during which submissions were made by the parties on the issues of dismissal of some of the allegations on the basis of delay in filing the Application and summary dismissal of the Application on the basis that there was no reasonable prospect of success, a decision was issued dismissing the Application on the basis of delay in filing (2014 HRTO 161).

3The Application indicated that the alleged acts of discrimination began on February 6, 2011 with the last in the series of incidents of discrimination taking place on January 4, 2012.

4Although the applicant had identified January 4, 2012 as the date of the last in a series of discriminatory events, the narrative in the pleadings made it clear that the dispute between the parties centered on the decision communicated by the respondent in February, 2011 to the applicant telling him that he was not permitted to participate in a course (the WRAP II course) that was scheduled to be held between February 7 and 10, 2011. All of the subsequent contact, primarily through email, between the applicant and representatives of the respondent organization, which he characterized as a “vicious series of inept decisions” amounting to a “strategy of harassment and discrimination” were discussions about the February, 2011 decision.

5The applicant’s position was, first and foremost, that he had filed the Application within the one year period, given his characterization of the email exchange that took place following the respondent’s decision to remove him from the WRAP II course. In the alternative, he argued that the attempts he made to clarify the reasons for the respondent’s decision and the efforts he made to resolve the situation and get the respondent to reverse its decision were evidence of good faith.

6The Tribunal found the last in the series of incidents to have taken place on February 7, 2011 and held that the applicant’s attempts to address his concerns between February 7, 2011 and the time that he filed his Application in December 4, 2012 did not constitute a good faith explanation, as required under section 34(2), as to why he did not pursue his rights under the Code in a timely manner.

7The applicant has filed a request for reconsideration of that decision (2014 HRTO 161). A respondent is not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal. In the circumstances of this Request, the Tribunal did not deem it necessary to seek submissions from the respondent.

8For the reasons that follow, the applicant’s reconsideration request is denied.

decision

9Section 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.

10Further 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 (Practice Direction on Reconsideration).

11Most relevant to this decision is Rule 26 which reads, in part, as follows:

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 and orders.

12The 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.

13As 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.

14The applicant has based his request on Rule 26.5(d). He has also made written submissions in support of his request. In those submissions, he continues to argue that there is no delay as the last in the series of incidents took place in January of 2012, rather than February, 2011, and that if delay is found to exist, there is ample evidence of good faith on his part. He argues that the actions of the respondent between February 2011 and January 2012 amount to fresh incidents of discrimination, or, alternatively, that the discoverability principle applies and that the respondent’s communications to him during that period resulted in him becoming aware in January 2012 that his rights under the Code had been infringed.

15Although the applicant based his request on Rule 26.5(d), the thrust of his submissions merely reiterate arguments made in writing earlier in the process and orally during the conference call, and addressed in the decision that the applicant seeks to have reconsidered. It is evident that the applicant disagrees with the Tribunal’s decision to dismiss his Application. However, he has presented no basis to reconsider the decision.

16The Request is denied.