HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sam Santucci
Applicant
-and-
Hamilton Police Service, James Durka and Ian Milburn
Respondents
RECONSIDERATION DECISION
Adjudicator: Brian Eyolfson
Indexed as: Santucci v. Hamilton Police Service
WRITTEN SUBMISSIONS BY
Sam Santucci, Applicant ) Self-represented
1On September 21, 2015, the Tribunal issued its Decision in this Application, 2015 HRTO 1254, dismissing the Application. On October 20, 2015, the applicant filed a Request for Reconsideration (“Request”).
background
2The Application alleged discrimination with respect to goods, services and facilities on the basis of disability, and concerned events that occurred, and were alleged to have occurred, while the applicant was in police custody after having been arrested on November 12, 2013. The applicant’s allegations included that he was denied medical treatment, harassed and bullied.
3In its Decision, the Tribunal found that the applicant had not established that the respondents subjected him to any discrimination or harassment, or failed to accommodate any disability-related needs that the applicant communicated, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application was dismissed.
THE REQUEST FOR RECONSIDERATION
4The applicant provides the following reasons in support of his Request:
i. Only two days were scheduled for the hearing, whereas the applicant needed at least four days in order to present his entire case properly, including viewing 7 hours of video and having the opportunity to give a final submission which he could not do because of the time constraints;
ii. The applicant was repeatedly interrupted by the adjudicator to hurry up the process and it seemed that the adjudicator was more concerned with finishing in the allotted time than hearing the evidence;
iii. The adjudicator said that “the truth was irrelevant to the proceedings”; and,
iv. The adjudicator exhibits an obvious bias in his decisions throughout his report and erroneously refers to many instances in the video evidence that do not confirm his assertions.
DECISION
5Under 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.
6The 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.
7The 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; and,
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.
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.
9In the present case, the applicant relies on Rule 26.5(c) of the Tribunal’s Rules in his Request, specifically that 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.
10Having considered the applicant’s submissions, for the reasons that follow, I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.
Applicant’s first reason for reconsideration set out above.
11As indicated in the Tribunal’s Decision, at the hearing, the applicant reviewed the narrative in his Application and adopted it as his evidence. He also provided additional evidence at the hearing. The applicant completed his evidence-in-chief before the lunch break on the first day of the hearing, which was held over two days, and was cross-examined after the lunch break. The applicant did not call any witnesses, other than himself, and he confirmed that his evidence was completed before the afternoon break on the first day of the hearing. The applicant did not appear to require more time to present his case, nor did he indicate that he did.
12After the respondents completed their evidence, the applicant confirmed that he did not have any reply or rebuttal evidence. The applicant then made final submissions, including reply submissions following the respondents’ final submissions. The applicant did not indicate that he felt that he did not have enough time to make his final submissions, or that he was constrained in any way by the available time.
13With respect to the video evidence, as indicated in the Tribunal’s Decision, it was agreed at the hearing that the Tribunal would review all of the video evidence, which the Tribunal did. The applicant also provided the Tribunal with three pages of notes referring to particular portions of the video evidence that he wished to draw the Tribunal’s attention to.
Applicant’s second reason for reconsideration set out above.
14Pursuant to Rule 1.7(n) of the Tribunal’s Rules of Procedure, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may limit the evidence or submission on any issue. While the Tribunal disagrees that the applicant was repeatedly interrupted to “hurry up” the process, while cross-examining the individual respondents, the applicant was asked and reminded to ask questions that were relevant to his allegations of discrimination in the Application. The applicant was also asked to focus on asking questions, rather than making submissions, and advised that he would have an opportunity to make submissions after all the evidence was completed. After the applicant had cross-examined one of the individual respondents for approximately an hour and a half, he was asked to try to wrap up his cross-examination within a further hour and fifteen minutes. The applicant then continued to cross-examine the individual respondent for approximately another hour and a half, and did not indicate that he did not have enough time to complete his cross-examination
Applicant’s third reason for reconsideration set out above.
15With respect to the applicant’s assertion that the Tribunal said at the hearing “the truth was irrelevant to the proceedings”, the applicant provides no context whatsoever for this statement alleged to have been made by the Tribunal. While I do not believe that this was said to the applicant at the hearing, again, while cross-examining the individual respondents, the applicant was asked and reminded to ask questions that were relevant to his allegations of discrimination in the Application.
16In any event, to the extent that the applicant’s Request is based on an assertion that the Decision is in conflict with Tribunal procedure, in my view, the applicant has not shown how the Tribunal’s process, hearing or Decision were in conflict with Tribunal procedure, or procedurally unfair in any way, and how the proposed reconsideration involves a matter of general or public importance.
Applicant’s fourth reason for reconsideration set out above.
17The applicant’s assertion that the Tribunal’s Decision exhibits bias is simply a bald assertion. The applicant does not explain in his Request how the Tribunal’s Decision is biased in any way. Similarly, the applicant’s related assertion that the Tribunal “erroneously refers to many instances in the video evidence that do not confirm his assertions” is simply a bald assertion. The applicant does not provide any actual examples to support these assertions.
Conclusion
18I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. Specifically, while the applicant has relied on Rule 26.5(c), he has not established in his request for reconsideration how the Decision is in conflict with established jurisprudence or Tribunal procedure and how the proposed reconsideration involves a matter of general or public importance.
19The Request is denied.
Dated at Toronto, this 4th day of January, 2016.
“Signed By”
Brian Eyolfson
Vice-chair