Marie Myrlande Mathurin v. Dr. David Naylor, 2014 HRTO 330

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marie Myrlande Mathurin

Applicant

-and-

Dr. David Naylor

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: March 12, 2014

Citation: 2014 HRTO 330

Indexed as: Mathurin v. Naylor

WRITTEN SUBMISSIONS

Marie Mathurin, Applicant ) Self Represented

Dr. David Naylor, Respondent ) Sari Springer, Counsel

1On August 26, 2013, the Tribunal issued its Decision in this Application, 2013 HRTO 1456, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

background

2In its Decision the Tribunal dismissed the Application as abandoned, the applicant having failed to respond to various Tribunal Directions.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. The applicant asserts that due to her "extreme circumstances" which she alleges were not a coincidence she was made dysfunctional and had to "disconnect" from everything to deal with "the trauma as a poor deliberately made homeless Canadian."

b. The applicant alleges that through no fault of her own she did not receive the last extension notice sent on July 23, 2013.

c. The applicant also states that this case is a matter of public importance.

4In its response to the Request the respondent makes a number of submissions including that the Request is out of time and should be dismissed for that reason. The respondent also argues that the applicant has not met any of the requirements for a reconsideration set out in Rule 26.5 below. The respondent argues that it is highly improbable that the applicant did not receive the July 23, 2013 letter because it is clear that the applicant received every other piece of correspondence to that point and received the Decision which was sent to the same addresses as all of the other material. The respondent also argues that if as the applicant claims she was "moving around" at this time it was incumbent on the applicant to advise the Tribunal of this fact in a timely way and make some kind of arrangement to be kept apprised of the processing of her case. The respondent notes that the applicant has had some experience with the Tribunal's processes having filed two prior Applications against the University of Toronto and has filed at least 6 other Applications against various respondents. Finally the respondent argues that while the applicant asserts that she was in extreme circumstances she provides no details about what this means or how it prevented her from responding to an outstanding direction to file submissions.

DECISION

5Under 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.

6The 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). Most relevant to this Decision is Rule 26 which states:

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.

7The 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.

8As 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.

9I am not satisfied that the applicant has met the significant burden required of a party seeking reconsideration of a final Decision of the Tribunal. I agree with the respondent that there is substantial reason to question the applicant's assertion that she did not receive the Tribunal's correspondence of July 23, 2013 which was sent by regular mail and email to the addresses provided by the applicant. I note that the applicant had indicated in her Application that her preferred method of communication was by email. I also note, although this would not be known by the respondent, that the applicant filed an Application on July 18, 2013 by email. In this Application (2013-15019-I) the applicant provided the same contact information as for this case. It is unclear why if she was moving around and not able to communicate with the Tribunal as she has suggested she would have provided the same contact information in this new Application.

10In any case even if the applicant did not receive the July 23 letter she was aware at that point that unless further extended by the Tribunal she was expected to have filed her submission by June 30, 2013. The applicant is experienced with the Tribunal's processes having filed 10 Applications, 9 of which have been dismissed or closed by the Tribunal.

11As regards the applicant's claim of being dysfunctional for the entire period of July and August 2013, no detail of what this means or how it prevented the applicant from complying with the Tribunal's directions is provided. There is also substantial reason to question the assertion given as indicated above that the applicant filed an Application on July 11, 2013 and then appears to have completed it on July 18, 2013.

12In conclusion I am not satisfied that the applicant has provided a credible explanation for her failure to comply with the Tribunal's directions above and in the circumstances I find that it would be inappropriate to reconsider the Tribunal's Decision dismissing the Application.

13The Request for reconsideration is denied.