Selkirk Estate v. Ontario (Health), 2014 HRTO 53

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

The Estate of Mark Selkirk

Applicant

-and-

Her Majesty the Queen as represented by the Minister of Health and Long-Term Care; University Health Network and Trillium Gift of Life Network

Respondents

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: January 14, 2014

Citation: 2014 HRTO 53

Indexed as: Selkirk Estate v. Ontario (Health)

WRITTEN SUBMISSIONS BY

The Estate of Mark Selkirk, Applicant ) Debra Selkirk, Representative

1On November 29, 2013, the Tribunal issued its Decision in this Application, 2013 HRTO 1980, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

2The Tribunal dismissed the Application on the basis that it was filed outside of the mandatory time limit provided in section 34(1) of the Code and there was no good faith explanation for the delay.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision: because it is in conflict with established case law and the proposed reconsideration involves a matter of general or public importance.

DECISION

4Under 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.

5The 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.

6The 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.

7As 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.

8I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

9As indicated above, the applicant relies on Rule 26.5(c). It submits that the Decision does not meet the standard of reasonableness and correctness; the processing of the Application did not comply with Tribunal procedure. Finally the applicant relies on and reiterates its bias argument which was dealt with in the Decision.

10In support of its Request, the applicant essentially repeats arguments made before the Tribunal but argues that the conclusions reached were unreasonable or incorrect. The applicant cites Dunsmuir v. New Brunswick, 2008 SCC 9. A request for reconsideration is not a judicial review or an appeal. The factors to be considered are set out in the Rule above.

11In Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties have had the opportunity to present their 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.

12The applicant argues that the right to life is fundamental and should not be lost due to delay in filing the Application. In the applicant’s view given the stakes the Decision was not reasonable. In my view these points were made by the applicant prior to the Decision, were considered and were dealt with in the Decision. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. Similarly the bias issue was the subject of submissions before the Tribunal, and dealt with in its Decision.

13The Tribunal also stated in Sigrist and Carson, above, that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. While the applicant clearly disagrees with the Decision, its representative pointed to no departure from the legal rules surrounding delay. The authorities relied on by the applicant relate to the substantive allegations in the Application and not to the question of the Tribunal’s jurisdiction when an Application appears to be filed late. I am satisfied that its submissions on this Request do not establish that the Tribunal’s Decision conflicts with established jurisprudence or Tribunal procedure.

14The applicant argues that a dismissal for delay does not comply with the Tribunal’s commitment to an accessible process. The applicant relies on the fact that the delay issue was not identified until after the Application had been delivered to the respondents. The applicant also relies on directions made by the Tribunal that for example they file full Responses and that the applicant’s representative was given further time to obtain the documents considered necessary for an estate to proceed with an Application. It is unfortunate and not entirely clear why the delay issue was not identified before it was, however it is clear that the Application was out of time and as such the Tribunal had no jurisdiction to consider it. The question of whether or not the Tribunal had jurisdiction could have been raised at any point by any party including the Tribunal, the fact that the Application was processed to a certain stage while unfortunate in the circumstances does not confer jurisdiction where an application appears to be out of time.

15The applicant also argues that it should have been given notice of an intention to dismiss. The applicant was provided notice of this issue in a Case Assessment Direction on October 21, 2013 and made submissions in response to it.

16As indicated the applicant reiterates its bias argument based on my having acted as counsel for a government Ministry in the distant past. It also asserts the new fact that for some time subsequent to my position as counsel, I have been appointed an adjudicator in various capacities with government agencies. These facts which are not accurately characterized by the applicant would not have changed the legal analysis in the Decision. The applicant points to no departure from the established jurisprudence in that aspect of the Decision.

17The applicant raised a number of other technical issues related to the processing of the Application, none of which affect or are related to the fact that the Application appeared to be out of time and the determination in the Decision that there was no good faith explanation for the delay.

18In conclusion, 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.