D.G. v. Centre for Addiction and Mental Health, 2014 HRTO 1668

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

D.G.

Applicant

-and-

Centre for Addiction and Mental Health

Respondent

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw

Date: November 18, 2014

Citation: 2014 HRTO 1668

Indexed as: D.G. v. Centre for Addiction and Mental Health

WRITTEN SUBMISSIONS

D.G., Applicant

Self-represented

Introduction

1On September 10, 2014, the Tribunal issued its Decision, 2013 HRTO 1336, dismissing this Application as untimely, finding there was no good faith explanation for the delay in filing the Application. The applicant asks the Tribunal to reconsider the Decision pursuant to section 45.7 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”).

THE REQUEST FOR RECONSIDERATION

2In his Request for Reconsideration the applicant alleges the decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.

decision

3Under 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.

4The Tribunal has issued Rules of Procedure, which govern such requests, as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers. Rule 26 states in part:

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.

5The Practice Direction on Reconsideration, January 2008 amended March 2010, 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 reopen and reconsider its own decisions, it is not obliged to do so.

7The Tribunal also has stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, 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.

8I find the applicant has not met the burden of establishing the threshold criteria justifying reconsideration. Specifically, the applicant has not addressed why the decision is in conflict with established case law or Tribunal procedure.

Conflict with Tribunal procedure

9The applicant alleges:

a. I cut off the applicant multiple times when he was giving relevant context and I assumed it was superfluous and therefore missed the points completely;

b. I simplified the summary in order to agree with my preconceived notions and biases, and not based on the facts of the case; and

c. I made errors that changed the facts of the case.

10With respect to the applicant’s allegation I cut him off, the applicant’s first submission at the hearing was that he provided extensive written submissions. In fact, the applicant provided more than 11 single-spaced, typewritten pages of submissions, more than 40 pages of medical documents as well as copies of Facebook pages, all of which I reviewed in detail both before the hearing, and again after hearing the oral arguments from both parties and when making my decision. If I cut the applicant off at any point, it was only because he repeated information already provided in writing. As a matter of course, I advise all parties at the outset of a hearing they do not need to orally repeat written submissions. I had no preconceived notions and biases.

11The applicant alleges I misstated the facts in paragraph 13. In fact, I stated it was “approximately four months” between May, when he was able to pursue this Application, and September when he did so. I referred to September, 2013 because the Application was filed on September 6, 2013.

12He further alleges I misstated facts in paragraph 14 when I said the applicant avoided seeking medical attention in the May 2013 period. In paragraphs 13 and 14, I stated there was no medical evidence to support that he was unable to file his Application as of May 2013. The applicant’s written submission confirmed that. He stated:

My current doctor […] is not willing to supply a note because he hasn’t seen me during the relevant periods, either because he wasn’t my doctor at the time or because of how infrequent our visits were.

13The applicant alleges I mistakenly said depression affected his ability to file his Application when it was anxiety. I did not refer to depression (although the applicant at the hearing referred to becoming depressed in June, 2011 and also referred to his “depressed time”). I referred to the Facebook postings the applicant filed, which he offered to show he lacked motivation for a period of time. I did not make a distinction in reaching my decision between the effect on him of anxiety versus depression, as in this particular case it was not germane. The rest of the applicant’s dispute with paragraph 15 is a re-argument of the case. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.

Good Faith – Conflict with Established Case Law

14The applicant takes issue with my finding that there was no good faith explanation for the delay in filing the Application, which he filed more than two and a half years after the date of the last event.

15When I refer to a lack of good faith, it is a reference to a legal test which I must apply to reach a decision with respect to whether an application has been filed in time or not. In this case, contrary to the applicant’s submission that I assumed one year was long enough for him to act, I considered the events during the entire two and a half years between the alleged incident and the time the applicant filed his Application.

16The applicant’s written submission refers to a “dramatic change in mood” in May 2013. While he additionally stated in his written submission he did not begin thinking of what occurred to him at the respondent’s until July and August, 2013, I found based on the submissions that there was no medical evidence to support the applicant’s inability to file the Application as of May 2013, even if I accepted his submission he was incapable up to that point.

17The applicant himself stated at the hearing he did not feel he could proceed until he first went to talk to the respondent, but stated this was a few months before he filed his Application, which again did not explain the delay in filing and did not support a finding of good faith.

Summary

18The applicant was given ample opportunity to make both oral and written submissions, both of which were reviewed in reaching my decision.

19The applicant provided no compelling reason for granting a reconsideration of my decision. He provided no evidence that my simplifying the summary of events was an attempt by me to have those events fit into what he alleges were my preconceived notions and biases. He also provided no basis upon which I can conclude I misapprehended the facts.

20In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.