HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Robertson

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health and Long-Term Care, Waypoint Centre for Mental Health Care and Carol Lambie

Respondents

RECONSIDERATION DECISION

Adjudicator: Brian Eyolfson

Date: November 30, 2015

Citation: 2015 HRTO 1615

Indexed as: Robertson v. Ontario (Health and Long-Term Care)

WRITTEN SUBMISSIONS

James Robertson, Applicant

Self-represented

INTRODUCTION

1On June 12, 2015, the Tribunal issued its Decision in this Application, 2015 HRTO 781, dismissing the Application.

2On July 9, 2015, the applicant filed an “Application to Reconsider” the Application “in totality”, referring to s. 45.7(1) of the Code. Section 45.7 of the Code provides as follows:

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.

3As set out below, Rule 26 of the Tribunal’s Rules of Procedure provides that any party may request reconsideration of a final decision of the Tribunal, within 30 days from the date of the decision.

4In the circumstances, while the applicant did not file a request for reconsideration in Form 20, as required by Rule 26 of the Tribunal’s Rules, the Tribunal will consider the applicant’s July 9, 2015 request as a Request for Reconsideration of the Tribunal’s final Decision, dated June 12, 2015 (date corrected June 15, 2015).

BACKGROUND

5By Interim Decision, 2012 HRTO 942, dated May 9, 2012, the Tribunal deferred this Application pending resolution of the applicant’s appeal of an Ontario Review Board matter at the Ontario Court of Appeal. In the Interim Decision, the Tribunal directed the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules which outline the procedure by which the application could be brought back on after the conclusion of the applicant’s appeal proceedings

6On April 17, 2014, the applicant filed a Request for an Order During Proceedings to re-activate the Application. The applicant subsequently provided the Tribunal with materials indicating that his appeal was heard by the Court of Appeal on December 12, 2012 and dismissed.

7In a Case Assessment Direction dated December 18, 2014, the Tribunal noted that Rule 14.4 of the Tribunal’s Rules states that a request to proceed with a deferred Application must be filed no later than 60 days after the conclusion of the other proceeding. The Tribunal indicated that it appeared that the applicant failed to file his Request to re-activate in accordance with Rule 14 of the Tribunal’s Rules, and that he had not provided a good reason for the failure to do so. The Tribunal determined that it was appropriate to schedule a telephone conference call to address the delay in requesting re-activation, and whether the Application should be dismissed because of delay. The parties were invited to deliver and file any written materials or documents prior to the conference call, if they wished to do so.

8The Tribunal heard submissions from the parties at the telephone conference call on March 16, 2015, and issued its Decision dismissing the applicant’s Request to re-activate the Application, and dismissing the Application, on June 12, 2015.

RECONSIDERATION DECISION

9Under 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 the Tribunal’s Rules. The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers. 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.

10The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Parties may ask the HRTO to reconsider a final decision. The HRTO may also reconsider a decision on its own initiative where it considers it appropriate.

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.

The rules for reconsideration are found in Rule 26 of the Rules of Procedure. A request for reconsideration will only be granted if the request meets one of the requirements in Rule 26.5.

Examples of situations where the HRTO has refused a request for reconsideration are where:

• the request asks for review of an interim decision which does not finally decide the party’s rights or interests;

• the request repeats arguments the party has made at the hearing or in written submissions;

• a party disagrees with and wishes to challenge a finding of fact, including findings made about the credibility of witnesses;

• a party wishes to raise new arguments that were not made, but could have been made at the hearing or in written submissions;

• a party received notice that an application could be dismissed as abandoned if steps were not taken, but did not follow the Tribunal’s directions by the deadline.

Examples of situations where the HRTO has reconsidered its decision are:

• where a party, through no fault of its own, did not receive notice of a hearing or request for submissions; or

• where exceptional factors exist that outweigh the public interest in the finality of decisions including inconsistencies in the HRTO’s case law.

11As 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.

12In the present case, the applicant submits that there has been some failure of third parties to fulfill their obligations to assist patients with processing legal documents. With respect to his grounds for reconsideration, the applicant refers to paragraph 10 of the Tribunal’s Decision which states as follows:

At the telephone conference call hearing, the applicant submitted that he does not have direct access to mail at the respondent facility, he has no idea if mail being sent is being routed, and there is no way for him to check if mail got out or was received.

13The applicant also attached to his reconsideration request a facsimile addressed to the Tribunal, and copied to the respondents, dated April 2, 2012, which he submits was in response to the Tribunal’s Notice of Intent to Defer. The applicant also reiterates his position on deferral set out in his April 2, 2012 submissions, and queries whether this file was reviewed in its entirety.

14The applicant also submits, among other things, that it appears that the Tribunal failed to consider all the facts and submissions and evaluate the grounds for his Application in an independent manner. He submits that it appears to him that either his April 2, 2012 facsimile was not received by the Tribunal or the Tribunal did not comprehend the fact that there were no pending appeals. He submits that his Application was unjustly and erroneously delayed by the Tribunal taking the position that there were pending appeals, and that the Application should proceed.

15To be clear, the applicant’s April 2, 2012 submissions, in response to the Tribunal’s Notice of Intent to Defer, were received by the Tribunal. The Tribunal’s Interim Decision dated May 9, 2012, deferring the Application, refers to the applicant’s submissions at paragraph 11 of the Interim Decision.

16In his reconsideration request, the applicant appears, for the most part, to challenge the Tribunal’s earlier Interim Decision deferring the Application, which was not a final decision. In addition, his submissions concerning the Tribunal’s earlier Interim Decision to defer the Application do not appear to provide a basis for reconsidering the Tribunal’s final Decision dismissing the Application.

17In addition, to the extent that the applicant raises concerns in his reconsideration request regarding sending and receiving mail at the respondent facility, the applicant appears to be simply rearguing issues already addressed at the telephone conference call hearing. As the Tribunal stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, reconsideration is not an opportunity to re-argue a case.

18In the circumstances, I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration of the Tribunal’s Decision. The Request is denied.