Grant Hutchinson v. Toronto Police Services Board, 2014 HRTO 6

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Grant Hutchinson

Applicant

-and-

Toronto Police Services Board

Respondent

RECONSIDERATION DECISION

Adjudicator: Douglas Sanderson

Date: January 6, 2014

Citation: 2014 HRTO 6

Indexed as: Hutchinson v. Toronto (Police Services Board)

APPEARANCES

Grant Hutchinson, Applicant

Self-represented

Toronto Police Services Board, Respondent

Michele Wright, Counsel

1This is an Application filed on August 13, 2012 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of disability.

Background

2The Application is in respect of incidents that occurred on September 19, 2011. On that date, officers of the Toronto Police Service attended at the applicant’s apartment, apparently in response to a neighbour’s complaint. The parties dispute whether the officers were entitled to enter the apartment, but there is no dispute that the officers did so. Similarly, the parties dispute what occurred and what was said after the officers entered the apartment, but there is no dispute that following their interaction with the applicant, the officers apprehended the applicant, pursuant the Mental Health Act, R.S.O. 1990, c. M.7 and transported him to the Humber River Regional Hospital. The officers waited with the applicant in the Emergency Room of the hospital until a bed was available for him. Hospital security arrived and the applicant was placed on a bed and placed in restraints, with which the applicant alleges the officers assisted. The applicant alleges that he was also sedated. The applicant alleges that after approximately five hours he was examined by a psychiatrist who released him without conditions.

3The procedural history of this Application was summarized in a Case Assessment Direction to the parties, dated June 4, 2013 as follows:

2The respondent filed a Response on December 7, 2012, denying the allegations of discrimination and requesting that the Tribunal dismiss the Application on the basis that another proceeding has appropriately dealt with the substance of the Application pursuant to section 45.1 of the Code.

3On December 10, 2012, the Tribunal delivered a copy of the Response and a Notice of Request to Dismiss (“Notice”) to the applicant.

4The Notice set out the basis for the respondent’s request to dismiss and directed the applicant to respond to the issues raised in the Notice by no later than January 7, 2013. The Notice advised the applicant that failure to respond to the Notice may be considered an abandonment of the Application and it might be dismissed for that reason.

5The applicant failed to file submissions in response to the Notice. Consequently, the Application was dismissed by Decision 2013 HRTO 205, on the basis the applicant was deemed to have abandoned the Application.

6On March 13, 2013, the applicant filed a request for reconsideration. In the reconsideration request, the applicant asserts that he did not intend to abandon the Application and that he had notified the Tribunal that he was prevented from certain means of correspondence and communication.

7A copy of the reconsideration request was delivered to the respondent. A Record of Contact, dated January 28, 2013, between the applicant and a Tribunal Case Processing Officer in relation to another case was also provided to the respondent. The Record of Contact notes that the applicant claimed that he was unable to use a computer, fax machine or regular mail.

8The respondent opposes the reconsideration and impugns the applicant’s claim that he was restricted from engaging in certain forms of communication and correspondence.

4In the same Case Assessment Direction the Tribunal ordered that the Registrar would schedule a half-day teleconference hearing to address the following issues:

i. Should the Request for Reconsideration be granted?

ii. Assuming the Request for Reconsideration were to be granted, is there a reasonable prospect that this Application will succeed, given the materials filed?

iii. Whether the Application should be dismissed, in whole or in part, on the basis that another proceeding has appropriately dealt with the substance of the Application?

The hearing

5The hearing was held by teleconference on September 30, 2013. I began the hearing by discussing some preliminary matters, which led to a discussion of the purpose of the hearing. I indicated that the purpose of the hearing was to address the three issues described in the Case Assessment Direction of June 14, 2012. When I did so the applicant said “What an idiot!”. I informed the applicant that his comment was highly inappropriate and reminded him that, although he was obviously deeply affected by the incidents in question, he was required to conduct himself with courtesy and professionalism. The applicant indicated that he thought his phone was on mute and had not intended for me to hear his comment. He did not apologize. The applicant maintained that he objected to the purpose of the hearing as set out in the Case Assessment Direction and it appeared that he expected the hearing to deal with the merits of the Application. The applicant hung up when I stated that the hearing would proceed as described in the Case Assessment Direction. I sought submissions from respondent’s counsel about how to proceed and she submitted that the hearing should continue. I agreed and the hearing proceeded in the applicant’s absence. See: Sebhatu v. Starwood Canada Corp. o/a The Westin Harbour Castle, 2012 HRTO 329. As the applicant has other matters before the Tribunal I would take this opportunity to remind him of his obligations, pursuant to Rule A7 of the SJTO’s Common Rules found in Part 1 of the HRTO’s Rules of Procedure, that all persons participating in proceedings before or communicating with the Tribunal are expected to act in good faith and in a manner that is courteous and respectful of the Tribunal and other participants in the proceeding.

6Counsel for respondent proceeded with her submissions regarding the Request for Reconsideration. Towards the end of her submissions on this subject, the applicant rejoined the hearing. The applicant maintained his objection to the purpose of the call and submitted that it was “ridiculous” that he should have to make arguments about whether the Application should proceed. The applicant also submitted that the Tribunal was “biased and corrupt”. I afforded the respondent an opportunity to make submissions on the applicant’s assertions. The respondent submitted that the applicant was on notice regarding the purpose of the hearing; therefore, his submissions regarding the subject matter of the hearing were groundless. The respondent submitted that the applicant’s submissions regarding bias seemed to reflect his general world view and not this Vice-Chair specifically. The respondent submitted that in any event the applicant did not articulate any reason for his allegations of bias.

7I asked the applicant to provide further submissions to support, if he could, his allegations of bias. The applicant stated that he believed the Tribunal is biased because its adjudicators attended York University, which is a respondent in another application filed by the applicant. The Supreme Court of Canada enunciated the principles to be applied when considering an allegation of a reasonable apprehension of bias in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 SCR 369 at p. 394 as follows:

. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

In my view, an informed person would not think that the fact that an adjudicator attended a university that is a party to a dispute with an applicant is sufficient, in itself, to found an allegation of a reasonable apprehension of bias. In any event, I did not attend York University. There was no proper basis for the applicant’s allegation and I did not recuse myself.

8The hearing proceeded and the applicant made his submission by reading submissions he filed on September 21, 2013. The applicant’s submissions recounted the facts, from his perspective, giving rise to this Application as well as several incidents occurring afterward that are beyond the scope of the Application. The applicant essentially shouted his submissions and continued to make inappropriate comments throughout his remarks, including noting on several occasions that he was “pissed off”, that this Tribunal Vice-Chair’s job “depended on the outcome of the hearing” and angrily informing respondent’s counsel that he is a millionaire and that his father is a millionaire.

Request for Reconsideration

9For the reasons that follow, the Request for Reconsideration is denied and it is unnecessary to address the other issues described in the Case Assessment Direction.

10The circumstances in which Reconsideration may be granted are set out in Rule 26.5:

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.

11The 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.

12The applicant filed a Request for Reconsideration (the “Request”) on March 13, 2013 and relies upon Rules 26.5(a), 26.5(b) 26.5(c) and 26.5(d). In the Request, the applicant stated that he was placed under house arrest approximately one week after he filed this Application and that the term of the house arrest was five months. The applicant stated that under the terms of the house arrest he was prevented from using a cell phone or computer and did not have access to the tools to respond to the Notice as directed by the Tribunal. The applicant submitted that he contacted the Tribunal by phone several times in January 2013 to ask for an extension of time to respond to the Notice. The applicant reiterated these submissions during the hearing.

13The respondent filed a response to the Request on April 30, 2013. The respondent submitted that the applicant’s request is no more than a bald assertion that he could not respond to the Notice because he did not have access to a computer to send e-mail and could not send a letter. The respondent submitted that this explanation is inadequate, but is also contrary the information available to the respondent. In that regard, the respondent noted the following:

• The Law Society of Upper Canada advised respondent’s counsel that it received correspondence from the applicant, dated December 21, 2012, regarding her;
• The applicant’s father sent an e-mail message to the Tribunal on the applicant’s behalf on November 28, 2012;
• Published Tribunal decisions regarding another application filed by the applicant indicate that he communicated with the Tribunal about that application in a time period substantially overlapping with the time in which the applicant had to respond to the Notice; and,
• There is no evidence supporting the applicant’s bald assertion that he requested an extension from the Tribunal.

14The respondent also submitted that it was not necessary for the applicant to have access to a computer to respond to the Notice. Rather, the applicant could have responded “the old fashioned way” by filing his submissions or a request for an extension of time by mail.

15At the hearing, the respondent submitted that the applicant never stated that he did not receive the Notice. The respondent submitted that he could have called the Tribunal to request an extension, made such a request through the mail or have his father assist him, as he had in the past. The respondent submitted that the applicant had in fact called the respondent on several occasions in December 2012 and January 2013 regarding another matter. The respondent also pointed to the contact report disclosed by the Tribunal regarding another application filed by the applicant. The respondent submitted that the applicant was capable of communicating with the Tribunal, but did not request an extension of the time allowed for responding to the Notice.

16In Reply, the applicant noted that his father “is not his secretary” and is a busy man, running a successful construction company, who does not have time to assist the applicant with his Application.

Analysis and Decision

17The applicant did not assert that he did not receive the Notice in question; therefore, there is no basis for Reconsideration pursuant to Rule 26.5(b). Neither is there any basis for Reconsideration pursuant to Rule 26.5(c), since the applicant made no submissions regarding how the Tribunal’s decision to dismiss the Application is in conflict with established jurisprudence or Tribunal procedure.

18In my view, the applicant’s request could come under Rule 26.5(a) or Rule 26.5(d) on the basis that the applicant’s inability to communicate with the Tribunal in writing and that he sought an extension by telephone are new facts that could potentially be determinative of the case and/or are factors that outweigh the finality of the Tribunal’s decision. I am not, however, satisfied that the applicant was incapable of communicating in writing to the Tribunal or that he requested an extension of the time allotted to respond to the Notice.

19The applicant did not deny the respondent’s submission that he had communicated in writing to the Law Society of Upper Canada in December 2012 regarding respondent’s counsel. Accordingly, I do not accept the applicant’s assertion that he was prevented from communicating with the Tribunal in writing between December 10, 2012 and January 7, 2013. In any event, the applicant provided no reason why he could not communicate in writing through the mail. In that regard, the material filed with the Tribunal indicate that the applicant was on house arrest and was not to be away from his place of residence except in the company of one of his sureties. The applicant did not assert that this condition prevented him from sending a letter by mail.

20The applicant also did not deny that he communicated with the respondent by telephone on several occasions in December 2012 and January 2013. The applicant stated that he spoke to the Tribunal several times by telephone in January 2013 and requested an extension to reply to the Notice. The applicant stated in the Request for Reconsideration that he could produce phone records confirming these contacts with the Tribunal, but did not, despite ample notice of the hearing and the requirement to produce documents. The Tribunal’s records indicate that the applicant contacted the Tribunal once on January 28, 2013 regarding another application to request an adjournment of a hearing. There is no indication that he requested an extension in this Application regarding a response to the Notice, although he was clearly able to communicate by telephone. Had he requested such an extension, it almost certainly would have been granted.

21Consequently, I find that the applicant has not established that there are compelling and extraordinary circumstances for reconsidering the decision to dismiss this Application.

Order

22The Request for Reconsideration is dismissed.