Spooner v. Ontario (Community Safety and Correctional Services), 2015 HRTO 1172

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Errol Spooner

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services

Respondent

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw

Date: September 3, 2015

Citation: 2015 HRTO 1172

Indexed as: Spooner v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Errol Spooner, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Respondent

Christopher Diana, Counsel

Introduction

1On June 30, 2015, the applicant filed a Request for Reconsideration (“Request”) of the Tribunal’s May 20, 2015 decision, 2015 HRTO 661, dismissing the Application as abandoned. The respondent filed its submissions in response to this Request on July 16, 2015.

Background

2The October 2, 2014 Notice of Hearing advised the parties that the hearing in this matter was set for March 2 and 3, 2015. It also advised the parties that they were to deliver to each other their arguably relevant documents by no later than October 23, 2014, and their witness statements and documents to be relied upon at the hearing by no later than January 16, 2015. The applicant failed to comply with either of these deadlines.

3The respondent sent its materials to the Human Rights Legal Support Centre (“Centre”) for the applicant. However, on January 21, 2015 the Centre wrote to the Tribunal to advise that it was not, and would not be in future, retained by the applicant. The Centre also requested that the applicant be afforded an extension of time to deliver and file his hearing materials. The Centre’s letter also advised the Tribunal that the applicant had been transferred to Millhaven Penetentiary (“Millhaven”).

4As a result, the Tribunal issued a January 27, 2015 Case Assessment Direction (“CAD”), which was sent to the applicant care of Millhaven. It advised the applicant he must deliver to the respondent and file with the Tribunal his witness statements and the documents upon which he intended to rely at the hearing by no later than February 6, 2015.

5The Tribunal then issued a February 11, 2015 CAD in which it stated that the applicant had not responded to the January 27, 2015 CAD, and had not communicated with the Tribunal in any way. The Tribunal, in the absence of any communication from the applicant, cancelled the March 2 and 3, 2015 hearing dates. The CAD further stated that the Tribunal was concerned that the applicant may have abandoned the Application. The Tribunal directed that the applicant deliver and file the materials required by the January 27, 2015 CAD together with an explanation for his failure to comply with the Tribunal’s Rules and Directions, by February 20, 2015 failing which the Application may be dismissed as abandoned. Both the January 27 and February 11, 2015 CAD’s were re-sent to the applicant at a different fax number at Millhaven on February 12, 2015.

6On May 14, 2015 the respondent wrote to the Tribunal, and mailed a copy of the letter to the applicant, noting the circumstances above and requesting that the Application be dismissed. In a May 20, 2015 Decision, the Tribunal, noting that the applicant had not communicated with the Tribunal in any way for several months, dismissed his Application as abandoned.

the law

7Under section 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19 (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.

8The Tribunal’s Practice Direction on Reconsideration includes the following statements:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

9The 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, last amended April 2014). 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.

10As 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.

11I need to determine, given the above, whether the applicant’s reasons for his reconsideration request satisfy any of the criteria set out in Rule 26.5. He relies on Rule 26.5(b).

parties’ positions

12The applicant submits he was transferred to Millhaven on December 12, 2014 and held in segregation. He states he asked staff there to permit him to call the Tribunal, and advised staff that he had an upcoming hearing. He alleges when he advised staff his case was against the Ministry of Correctional Services, staff refused to help him in any way.

13The applicant submits that at Millhaven, inmates must have money to purchase writing supplies, and at that time he had no money. He also alleges he was told he could not place 1-800 calls on his pin card. He notes the Tribunal is aware that when he has been incarcerated in provincial institutions he has kept in contact, and knowing this the Tribunal should have contacted Millhaven and asked it to set up a conference call with him. He submits he had no way of contacting the Tribunal.

14The respondent states that the fact the applicant was able to send his Request on June 30, 2015 belies his submission that he was not able to communicate with the Tribunal at all. The respondent submits his allegation he was not able to communicate with the Tribunal for such a lengthy period of time does not have an air of reality to it. The respondent notes the applicant does not deny receiving the various CAD’s; and makes no reference to filing any complaints with the Office of the Correctional Investigator or other relevant authorities or to filing an inmate grievance. The respondent also notes the applicant could have asked someone to write to the Tribunal on his behalf. It submits he is not entitled to simply sit on his rights and not take any reasonable steps to move the case forward. The respondent also notes the applicant does not give any indication of when he might comply with his disclosure obligations.

15The respondent states the applicant must show in this case that he either did not get notice of the proceeding or hearing through no fault of his own, or that there are other factors that outweigh the public interest in the finality of Tribunal decisions.

16The respondent submits the applicant does not claim he did not get notice of the proceeding, nor does he claim he was unaware of his disclosure obligations. Instead he alleges he could not respond because he was in custody. In the respondent’s view even if Rule 26.5(b) could be defined broadly enough to encompass the inability to respond, the applicant has provided inadequate information to have the Tribunal revive the Application after such a lengthy period.

17Finally, the respondent submits that with respect to Rule 26.5(d), there are no compelling or extraordinary circumstances that would warrant the Tribunal granting the applicant’s request. The respondent relies on Rosario v. FORM Architecture Engineering, 2014 HRTO 1466 (“Rosario”).

decision and analysis

18The applicant’s request is granted.

19I find no reason to doubt the applicant’s submissions that he was not able to communicate with the Tribunal once he was in Millhaven.

20Prior to his transfer, the Tribunal notes that he not infrequently contacted the Tribunal by telephone. However, after his transfer, those calls stopped. This is consistent with the applicant’s explanation that he was not able to contact the Tribunal for a period of time after he was transferred, and was not able to respond to the January 27 and February 11, 2015 CAD’s. He at no time alleges he did not receive the CAD’s, but simply alleges he was not able to respond to them.

21The applicant filed his Request from Millhaven in June, 2015 upon receiving the abandonment decision. On June 5, 2015 a prison support co-ordinator wrote to the Tribunal on behalf of the applicant. In that correspondence, the applicant explained why he was not able to communicate with the Tribunal until that time.

22In the circumstances, the applicant has satisfied me that other factors exist that outweigh the public interest in the finality of Tribunal decisions.

23The applicant took steps to respond to the abandonment decision, apparently as soon as he was able to do so, and he clearly did not intend to abandon his Application. His failure to communicate with the Tribunal coincides with his transfer to Millhaven. I find no reason to doubt that the applicant took steps to contact the Tribunal as soon as he was able to do so. I find that, on balance, it is appropriate to grant reconsideration as it is clear that the applicant has not abandoned his Application.

ORDER

24The Tribunal orders as follows:

a. The applicant’s Request for Reconsideration is granted.

b. The parties will be sent a new Notice of Hearing with a new date and time for the hearing.