Hicks v. Hamilton-Wentworth Catholic District School Board, 2015 HRTO 1702

Human Rights Tribunal of Ontario

B E T W E E N:

Darrell Jordan Hicks

Applicant

-and-

Hamilton-Wentworth Catholic District School Board

Respondent

-and-

Ontario English Catholic Teachers’ Association

Intervenor

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: December 17, 2015

Citation: 2015 HRTO 1702

Indexed as: Hicks v. Hamilton-Wentworth Catholic District School Board

[1] On September 25, 2015, the Tribunal issued its Decision in this Application (2015 HRTO 1285) dismissing it as an abuse of process. The applicant has asked the Tribunal to reconsider its Decision.

[2] The procedural history of this case is lengthy and will not be repeated here. As set out in one of more Case Assessment Direction issued to the parties, the issues to be addressed at a preliminary hearing were as follows:

a. Whether this Application should be dismissed as an abuse of process because of the applicant’s refusal to comply with the Tribunal’s Order with respect to the production of medical records; and,

b. Whether this Application should be dismissed pursuant to section 45.1 of the Code or because it is an abuse of process for it to continue in light of the dismissal of the grievance arbitration by Arbitrator Tacon in her award dated July 22, 2014.

[3] After reviewing the written submissions of the parties and the oral submissions at the preliminary hearing, the Tribunal dismissed the Application for both of the reasons set out above.

DECISION

[4] The Request for Reconsideration is denied.

[5] Under 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.

[6] The 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.

7The 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.

8As 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.

9The applicant relied on Rule 26.5 (a) and advised that he is now prepared to comply with the Tribunal’s Directions to produce the documents which it determined were arguably relevant to the issues in dispute in the Application. The applicant argues that he received incorrect advice from his “health care team” about the propriety of the Tribunal’s Order. He has also indicated that he has lost confidence in his “health care team” and intends to replace its members. This would be an unfortunate consequence given that the allegedly erroneous advice is entirely unrelated to the expertise of the applicant’s health care provider.

10The difficulty with the applicant’s submissions is that his refusal to produce this material has been longstanding beginning with an order made in the grievance arbitration on July 12, 2013. The applicant asserts that he received bad advice from his health care team but he also has asserted that he received similar advice from lawyers. It seems to me more likely that he asked the wrong questions to his advisors than that he got bad advice from them. In any case, whatever advice the applicant alleges he received from some quarters there is no doubt that he was given appropriate advice from his bargaining agent and its counsel during the arbitration process. He was also given several opportunities by the arbitrator to produce this material and then again by the Tribunal after this Application was reactivated. The applicant made a choice about what advice to take and now, years too late, regrets the decisions that he has made. I find that none of this is new evidence that would be potentially determinative of the case within the meaning of the Rule.

11Aside from the applicant’s too late agreement to comply with the Tribunal’s Order, his submissions do not address the second basis for the dismissal of the Application that being my conclusion that it would be an abuse of process to proceed with the Application in light of the dismissal of the arbitration. The essence of that aspect of the Decision is reproduced here:

In addition, I find that it is an abuse of process for the applicant to seek to re-engage the Tribunal’s process where by his own conduct the grievance filed on his behalf was dismissed as an abuse of process. This is forum shopping of the most obvious kind. As discussed above, a grievance was filed to which this Application was deferred. That grievance was dismissed as an abuse of the arbitration process because of the applicant’s conduct in that proceeding. In my view, it would be inappropriate and an abuse of the Tribunal’s process to entertain this Application further in these circumstances. The abuse of process is made more stark given that the grievance was dismissed in significant part because of the identical issue bringing this proceeding to a halt – the applicant’s refusal to produce documents when ordered to do so.

12In my view, it would be entirely inappropriate to reconsider this aspect of the Decision. To be clear the fact that the applicant would not comply with the Tribunal’s Order is at this stage beside the point. This Application was an abuse of process from the moment the grievance arbitration was dismissed. For related reasons it was dismissed pursuant to section 45.1 because essentially the same case had been brought before the arbitrator and dealt with there when it was dismissed as an abuse of process. I am not satisfied that the applicant has provided any basis to reconsider this aspect of the Decision and would deny the Request for this reason as well.

13This dispute has been litigated between the parties since 2013 with little progress in its resolution almost entirely as a consequence of the applicant’s refusal to produce relevant documents. The public interest in the finality of litigation is an important value that is reflected in the narrow scope of the reconsideration power. For all of the reasons set out above, the Request to reconsider the Decision is dismissed.