Ferron v. The Regional Municipality of Peel, 2015 HRTO 1452

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wayne Ferron

Applicant

-and-

The Regional Municipality of Peel and

The Governing Council of Salvation Army in Canada

Respondents

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: October 29, 2015

Citation: 2015 HRTO 1452

Indexed as: Ferron v. The Regional Municipality of Peel

WRITTEN SUBMISSIONS

Wayne Ferron, Applicant

Self-represented

Introduction

1In 2015 HRTO 1056, issued on August 7, 2015 this Application was dismissed. The applicant has filed a Request for Reconsideration (Form 20).

Background

2This Application was filed on September 20, 2012 and relates to events in August and September 2012.

3Before filing this Application the applicant commenced a civil action ("civil action") in the Ontario Superior Court of Justice (Court File no. CV-12-1716-00) against a number of named Defendants, including the respondents in this case.

4In Interim Decision, 2013 HRTO 1544, dated September 13, 2013, the Tribunal deferred this Application pending the conclusion of the civil action finding that the two proceedings were inter-related such that deferral was appropriate.

5One of the parties to the civil action and other related civil proceedings filed a Notice of Application with the Court for an Order that the applicant be prohibited from instituting any further proceedings in any Court without leave and an Order that any proceeding previously commenced by the applicant be discontinued.

6On July 17, 2013, the Court issued an Order declaring the applicant to be a vexatious litigant and prohibiting him from instituting or continuing any proceeding in any Court in Ontario unless leave of the Court was first granted. The various proceedings commenced by the applicant were discontinued including the civil action to which this Application was deferred.

7The applicant appealed the Order declaring him to be a vexatious litigant to the Court of Appeal. The Court denied his motion to extend the time to file the appeal in an Endorsement issued on March 5, 2014.

8The applicant sought leave to appeal this Order to the Supreme Court of Canada. Leave to appeal was denied on July 3, 2014.

9On July 17 and on October 14, 2014 the Tribunal wrote to the applicant asking him to confirm the status of the civil action. The applicant did not respond to this correspondence. On October 21, 2014 the Tribunal wrote to the parties to confirm that the applicant had attended at the Tribunal's offices and advised that the civil action was ongoing and accordingly the Tribunal would continue to defer the Application.

10The applicant filed his request to re-activate the Application on March 21, 2015.

11The Salvation Army argued that this Application should not be reactivated because the applicant's Request was untimely. The Salvation Army also argues that it should be dismissed pursuant to section 45.1 of the Code and further that it would be an abuse of process for the Tribunal to further process this Application.

12In a Case Assessment Direction issued on July 8, 2015, I directed that a preliminary hearing be held to consider two issues as follows:

a. Should the Tribunal waive the contained in Rule 14.4 that a request to reactivate a deferred Application be filed no later than 60 days after the other proceeding has concluded; and

b. Whether the Application should be dismissed pursuant to section 45.1 of the Code because the substance of it has been appropriately dealt with in another legal proceeding, in this case, the civil suit(s) commenced by the applicant.

13In the Decision, I denied the request to reactivate. I also concluded that the Application should be dismissed pursuant to section 45.1 of the Code because it had been appropriately dealt with.

Decision

14For the reasons that follow the Request for Reconsideration is denied.

15Under 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.

16The 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.

17The 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.

18As 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.

19The applicant relies on Rule 26.5 (b) and (c).

20The applicant's submissions are lengthy, repetitive and very difficult to follow. However the applicant appears to argue that the deferral of the Application was contrary to the Tribunal's Rules which the applicant states require that the Tribunal issue a Notice of Intent to Defer (NOID) if it intends to defer an Application. In this case no NOID was issued argues that applicant and therefore the deferral of the Application was defective. He argues therefore the deferral was without notice to him and contrary to Tribunal procedure.

21As indicated above, the Application was deferred in 2013 HRTO 1544, dated September 13, 2013. In that Interim Decision the circumstances giving rise to the deferral are noted as follows:

The respondents filed their respective Responses denying the allegations. The respondents request that the Tribunal dismiss the Application, pursuant to section 34(11) of the Code, on the basis that the civil action seeks remedies that overlap with this Application. Alternatively, the respondents request that the Application be deferred pending the conclusion of the civil action. The respondents also note that there are other legal proceedings underway involving co-defendants which may have some bearing on this Application and that those matters may be concluded in the upcoming months.

The applicant filed reply submissions opposing the respondents' request to dismiss. The applicant submits that the civil action pertains to different events and is distinct from this reprisal Application.

22I note as well that the applicant was directed to address a number of issues including whether or not the Application should be dismissed in correspondence dated June 10, 2013.

23The Tribunal's Rules (Rule 14.2) require that when the Tribunal intends to defer an Application it must give the parties an opportunity to make submissions on the issue. The Rule does not require that the notice be in the form of a NOID. The Tribunal gave the applicant notice of the respondent's requests that the Application be dismissed or deferred and the applicant did, as indicated in the Interim Decision, make submissions opposing these requests. There was no violation of the Tribunal's Rules and no failure to give notice in this case therefore no basis to the applicant's Request.

24I would also observe that it is entirely unclear how any failure in respect of the deferral of this case in 2013 has any bearing on the Decision issued several years later.

25The applicant also argues that there is no final order of the Court and therefore that proceeding has not concluded. Hence no need to file a Request to Reactivate the Application.

26This argument was made and responded to in the Decision. The fact is that the applicant's civil proceedings concluded in July 2014 by virtue of the vexatious declaration made on July 17, 2013 and the dismissal of the applicant's attempt to appeal up to the Supreme Court of Canada where leave was denied on July 3, 2014. A request for Reconsideration is not an opportunity to re-argue issues that have already been determined.

27For all of these reasons, the request for Reconsideration is dismissed.