Aziga v. Ontario (Community Safety and Correctional Services), 2014 HRTO 1465

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Johnson Aziga

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services and Toula Bezas

Respondents

AND B E T W E E N:

Johnson Aziga

Applicant

-and-

The City of Hamilton and Linda Blake-Evans, Hamilton Police Service and Troy Ashbaugh and The AIDS Network Hamilton

Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: October 1, 2014

Citation: 2014 HRTO 1465

Indexed as: Aziga v. Ontario (Community Safety and Correctional Services)

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2014 HRTO 144 dated January 31, 2014, which dismissed these Applications for delay.

2On May 20, 2014, the applicant filed a Request for Reconsideration of the Tribunal’s Decision. While this Request was filed well beyond the 30 day time limit for requesting reconsideration under the Tribunal’s Rules of Procedure, I have nonetheless considered the substance of the applicant’s request.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”) provides as follows:

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.

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. 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).

5The 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.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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.

7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated 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.

8The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 of the Rules provides:

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.

9As a result, I need to determine whether the material filed by the applicant in support of the Request for Reconsideration satisfies any of the criteria set out in Rule 26.5 upon which he relies. The applicant relies upon the criteria identified in Rule 26.5(a), (c) and (d).

10In his Reconsideration Request, the applicant largely repeats many of the submissions he previously had made about the circumstances relating to his incarceration that he contends prevented him from filing these Applications at an earlier time. These circumstances were considered by me at the time I issued my original Decision, and will not be addressed again here. This is consistent with the principle that the purpose of reconsideration is not for an applicant to repeat submissions that already were heard and considered in the context of the original Decision. Rather, I will address only new matters that have been raised in the Reconsideration Request.

11The applicant submits that a lack of sophistication was imposed upon him due to being in restrictive protective custody. In my view, the applicant is not at all lacking in sophistication, as he has demonstrated in the numerous and lengthy correspondence that he has filed with the Tribunal and in his oral submissions at the teleconference hearing. I do not accept this as a reasonable explanation for the delay in filing his Applications.

12The applicant also asserts that he did not know about his right to pursue a remedy against discrimination under the Code until he was so informed by his criminal defence lawyers in June 2011. He asserts that he was misinformed by his criminal defence lawyers that he had one year from his sentencing in August 2011 to file an application with this Tribunal. This was not stated by the applicant during his lengthy oral submissions at the teleconference hearing, even though he would have known this at the time. In any event, this Tribunal has held that it is not enough for an applicant to plead ignorance of the law or even that he received bad legal advice, when the circumstances are such that he had reason to make inquiries about his rights at a much earlier time. In my view, this is the situation with the applicant.

13The applicant asserts that he never made the statement that “after this time, he was arrested and was focused on his criminal trial”, as attributed to him in para. 24 of my Decision. I accept that these were not the applicant’s precise words and that I was paraphrasing an oral submission made by him at the teleconference hearing. His actual words were that at the relevant time, he could not get a lawyer to take his case to file a human rights application; that at that time, his criminal issues were more paramount; and that at the time, he was feeling overwhelmed and could not pursue both criminal and human rights issues. In my view, the paraphrasing that appears at para. 24 of my Decision is an accurate reflection of what the applicant was saying at the teleconference hearing.

14The applicant also takes issue with my finding at para. 25 of my Decision, where I stated, “ . . . it appears to me that he made a choice not to proceed with a human rights claim at an earlier time due to concerns about the potential disclosure of his HIV+ status and due to a desire to focus on his criminal trial”. The applicant then goes on to recite the conditions and restrictions he experienced while incarcerated, which I have already heard and considered. In my view, the statement made in my Decision is an accurate reflection of the applicant’s submissions at the teleconference hearing.

15On the basis of the conditions and restrictions of his incarceration, the applicant submits that it was “impossible” for him to file a human rights application at an earlier time. For the reasons stated in my Decision, I simply do not accept that.

16The applicant also relies upon his HIV / AIDS episodic disability to justify the delay. The difficulty I have with this submission is that the applicant has not satisfied me that his disability was so debilitating as to prevent him from pursuing his legal rights under the Code at an earlier point in time: see, for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; Savage v. Toronto Transit Commission, 2010 HRTO 1360; Dionne v. Toronto (City), 2011 HRTO 317.

17The applicant further relies upon the fear regarding the disclosure of his HIV status. This was a submission already made by him at the teleconference hearing, and considered by me in rendering my Decision. I do not understand the nature of this concern in relation to the filing of a human rights application, where the applicant would have been required only to “disclose” his HIV status to the respondents who were already aware of it. I also note that, certainly as of the time the criminal charges against the applicant became a matter of public knowledge, there was no longer any basis to support such a concern.

18The applicant asserts that the conditions of his incarceration in segregation or solitary confinement represent a factor that outweighs the public interest in the finality of Tribunal decisions. In my view, the conditions of the applicant’s incarceration in the context of the delay issue are only relevant to the issue of whether these circumstances provide a reasonable explanation for the applicant’s lengthy delay in filing his Applications. I have already addressed this in my Decision, and have found that they do not.

19The applicant takes issue with the statements made in para. 14 of my Decision, which he alleges includes some statements that are false. However, the applicant fails to identify what (if any) statements in that paragraph are incorrect, and how (if at all) any incorrect statements in that paragraph would affect the outcome of my Decision. The applicant also takes issue with the statements made in para. 37 of my Decision, but fails to articulate what he takes issue with or on what basis.

20Accordingly, I find that the applicant has failed to satisfy me that: there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; my Decision is in conflict with established jurisprudence or Tribunal procedure; or other factors exist that outweigh the public interest in the finality of Tribunal decisions.

21For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.