Surh v. Toronto Police Services Board, 2015 HRTO 1005

Doug Surh

Applicant

-and-

Toronto Police Services Board and Bradley Verspeeten

Respondents

Doug Surh

Applicant

-and-

Toronto Police Services Board

Respondent

Doug Surh

Applicant

-and-

Toronto Police Services Board

Respondent

Adjudicator: Naomi Overend

Date: July 28, 2015

Citation: 2015 HRTO 1005

Indexed as: Surh v. Toronto Police Services Board

APPEARANCES

Doug Surh, Applicant

Self-represented

Toronto Police Services Board (2010-04964-I), Respondent

Antonella Ceddia, Counsel

Introduction

1This Interim Decision addresses the respondents’ request that these consolidated Applications be dismissed on the basis of abuse of process or as abandoned. It also addresses the applicant’s Request for Reconsideration dated May 19, 2015.

2The applicant filed these three Applications between February and December 2010, alleging discrimination in services on the basis of race, colour, ethnic origin, reprisal and sex, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3The applicant was directed in an Interim Decision, 2014 HRTO 261, to indicate whether he would attend an in-person hearing. On March 7, 2014, the Tribunal received confirmation from the applicant that he would attend such a hearing. Subsequent to that confirmation, the applicant filed a request for an order asking for a publication ban.

abuse of process

Recent Procedural History

4The Tribunal had sent out a Notice of Hearing on March 4, 2015, scheduling the hearing for September 1, 2015. One of the respondents’ counsel wrote in shortly after the Notice went out to advise that she was not available that date and asking that the hearing be rescheduled. The request was granted as it was made within two weeks of the Notice, in conformity with the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments.

5Since that time, the Tribunal’s scheduling unit has been attempting to reschedule the hearing, without success. It is clear from the correspondence on file that the counsel for the respondents have been fully cooperative with the scheduling process, but that the applicant has failed to cooperate, instead insisting that the Tribunal deal with a myriad of procedural requests to his satisfaction before he provides dates. He filed a Request for an Order During Proceedings on March 9, 2015 (and a duplicate of the identical document on March 17, 2015).

6On April 20, 2015, the Tribunal issued an Interim Decision, 2015 HRTO 493, in which it addressed the procedural issues raised by the applicant, one of which was his assertion that he could not participate in a hearing as he had been banned from downtown Toronto by the police. He was ordered to confirm his willingness to proceed to a hearing within two weeks of the receipt of respondent counsel’s confirmation that he was not banned from attending a hearing in downtown Toronto.

7Despite the fact that counsel confirmed on April 21, 2015 that the applicant was not banned from downtown Toronto, the applicant did not confirm his willingness to proceed, as directed. On May 6, 2015, counsel for the respondents wrote to ask that these matters be dismissed as abandoned. The applicant responded by filing a May 7, 2015 Request for an Order During Proceedings. In this document he states, somewhat cryptically:

Applicant still requires the complaint to remain open a deferment does not mean applicant wants Application dismissed. Applicant intends to be available for a hearing.

8On May 15, 2015, the Tribunal issued a Case Assessment Direction attempting to address some of the applicant’s concerns (many of which are difficult or impossible to discern). With respect to the issue of scheduling, it advised the parties of the following:

The Registrar will be scheduling a one-day hearing. If the applicant does not cooperate with this scheduling process, the Tribunal may dismiss these Applications as abandoned.

9On May 19, 2015, the Tribunal sent an email to the parties asking them to provide mutually agreeable dates. The applicant responded to this request that day, but failed to copy the respondents on his email and was advised that the Tribunal could not consider it until such time as it had confirmation that the respondents were copied. On May 28, 2015, he wrote a further email to the scheduler: “Information as sent to others, may 19,15.”

10It is not altogether clear whether the applicant, in fact, copied the respondents on his May 19, 2015 email. He appears to have sent them (and the Tribunal) a Request for Reconsideration (Form 20) on that date. He does not specify what Decision or order of the Tribunal on which he is requesting reconsideration.

11The Assistant Registrar wrote to the applicant on May 29, 2015 to advise him that his Request for Reconsideration does not stay directions issued by the Tribunal and warning him to provide his availability in response to the Tribunal’s May 19, 2015 email. The applicant responded as follows on June 8, 2015:

applicant has not received the respondents, notes, correspondence etc. requested in application. The hrto should not be scheduling hearing now.

12The Assistant Registrar wrote to the applicant that same day and advised him that documents are not due until the deadlines set out in the Notice of Hearing. The applicant wrote a further email in response on June 20, 2015 saying that documents were supposed to be submitted by the respondents in March 2015. Deadlines were, in fact, set out in the March 4, 2015 Notice of Hearing, but were set aside when the Tribunal received its timely rescheduling request. Until such time as the Tribunal is able to send out a Notice of Rescheduled Hearing, the parties are not subject to disclosure deadlines.

Next Steps

13The Tribunal’s process has been disrupted by the applicant’s insistence that he will not provide dates and, therefore, some measure of assurance that he will participate in the hearing process, until his many demands are met. The respondents, understandably, are very frustrated with this and have asked the Tribunal to dismiss the three Applications on the basis that they have been abandoned or that to proceed would be an abuse of process.

14Given that the applicant is participating in the process, albeit not in the prescribed manner, it is not appropriate to dismiss his Applications as abandoned. However, the Tribunal has the authority to control its processes, including, if necessary, dismissing applications in which the applicant has failed to abide by the directions and orders issued by the Tribunal.

15The Tribunal cannot dismiss an application within its jurisdiction on the basis of abuse of process without first giving the applicant the opportunity to make oral submissions. Accordingly, the applicant is directed to advise the Tribunal of whether he wishes to make oral submissions on abuse of process by August 20, 2015. If he chooses to proceed by way of written submissions, he must submit them by August 27, 2015.

16If the applicant does not indicate that he wishes to proceed by way of oral submissions by August 20, 2015, or file written submissions by August 27, 2015, the Tribunal will make a decision in the absence of submissions from the applicant. In the event that the applicant fails to advise the Tribunal or make written submissions in accordance with the above deadlines, the Tribunal will advise the respondents whether it requires them to file written submissions.

reconsideration request

17Under 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.

18The 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 (Practice Direction on Reconsideration, January 2008 amended June 2008). 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.

19The 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.

20As 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. Moreover, Rule 26.1 allows parties to seek reconsideration of final decisions of the Tribunal. An interim decision denying a request(s) made by a party is not a final decision.

21The applicant appears to be asking the Tribunal to reconsider a number of interim rulings made by it. In any event, there has been no final decision. The request for reconsideration is denied on that basis.

ORDER

22In sum, I have made the following orders and directions:

a. The applicant’s request for reconsideration is denied.

b. The Tribunal will hear submissions on whether to proceed with these Applications would be an abuse of process.

c. The Tribunal will schedule an oral hearing by teleconference if it hears from the applicant on or before August 20, 2015 that he wishes to make oral submissions.

d. Otherwise, the applicant may file written submissions on abuse of process by August 27, 2015. If the Tribunal requires the respondents to file written submissions, it will notify them following this date.

e. If the applicant does not comply with the above deadlines, the Tribunal will determine the issue of abuse of process in his absence.

Dated at Toronto, this 28th day of July, 2015.

“signed by”

Naomi Overend

Vice-chair