HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Doug Surh Applicant
-and-
Toronto Police Services Board Respondent
RECONSIDERATION DECISION
Adjudicator: Naomi Overend Decision Date: August 4, 2016 Citation: 2016 HRTO 1035 Indexed as: Surh v. Toronto Police Services Board
WRITTEN SUBMISSIONS
Doug Surh, Applicant Self-represented
Toronto Police Services Board, Respondent David Gourlay, Counsel
Introduction
1On August 8, 2014, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). By decision dated December 2, 2015 (2015 HRTO 1630), the Tribunal dismissed this Application as abandoned when the applicant did not respond within the timeframe set out in a November 3, 2015 Case Assessment Direction.
THE REQUEST FOR RECONSIDERATION
2The applicant submitted a Request for Reconsideration on the basis that:
a. There are new facts or evidence that could potentially be determinative of the case and that could not have been obtained earlier.
b. He was entitled to notice, but through no fault of his own, did not receive notice of a proceeding.
c. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general public importance.
d. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.
DECISION
3Under 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.
4The 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 amended June 2008). 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.
5Reconsideration 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.
6The Reconsideration Request states that the applicant filed a Request for an Order During Proceedings (Form 10) on November 30, 2015, two days before the Tribunal dismissed his Application as abandoned. He attached a copy of the Form 10 he purports to have sent in that day to his Reconsideration Request, as well as two pages of emails seemingly sent by the applicant to himself between November 30 and December 3, 2015.
7There is some question about the authenticity of the emails. In a Case Assessment Direction to the parties in response to the Reconsideration Request, I wrote:
... In his Request for Reconsideration, [the applicant] attaches what he claims was the Form 10 filed on that day, as well as two pages containing emails. The first page contains what seem to be a series of emails sent by the applicant to himself on November 30, December 3 and December 23, 2015. Between the latter two emails is a header from an email sent to the Tribunal Registrar and copied to counsel for the respondent at 7:14 p.m. on December 3, 2015. On the second page is the response email from the Registrar, sent at 7:28 a.m. on December 4, 2015.
The Tribunal has searched its database for emails from the applicant. For the parties' reference it is including with this CAD the four emails found. The first of these is an email sent from the applicant on December 3, 2015 at 7:11 p.m. that describes the "subject" of the email as "Re: form 10," but which contains no content. The second email sent by the applicant, also on that date, but at 7:14 p.m. (i.e., three minutes later) contains the content (if not the form) of the applicant's Form 10. In this, the applicant requests that I be replaced as the adjudicator.
The next email from the applicant is dated December 11, 2015 and is in response to the Registrar's December 4, 2015 email to him. In that email, the applicant asserts that the form 10 was sent on November 24, 2015 and accuses the Tribunal of not reading his emails. In a subsequent email sent by the applicant on December 23, 2015, also in response to the Registrar's December 4, 2015 email, he does make any particular assertion with respect to the date of his form 10, but notes (correctly) that the file number was on one of the emails.
The Tribunal has no record of receiving anything from the applicant on November 24 or November 30, 2015. The first record of receiving the above-noted Form 10 on this file from the applicant was the email sent after 7 p.m., December 3, 2015. This is significant because it is one day after the Tribunal issued its Decision dismissing this Application as abandoned.
The parties are directed to file submissions on this reconsideration request in light of the above. If either party has information that demonstrates that the email from the applicant was sent earlier than December 2, 2015 (specifically, whether it was sent on November 24 or 30, 2015), they are directed to provide it to the Tribunal. These submissions must be filed by April 18, 2016.
8On April 12, 2016, the applicant filed what appears to be another Form 10, this time with a date of November 30, 2015 scratched out and replaced with April 12, 2016. His submissions are otherwise unresponsive to my April 5, 2016 CAD. The respondent sent in detailed submissions to the CAD in which it states that it had no information that the applicant had sent in material prior to the Decision to dismiss. That is, the applicant did not copy it on any of the material he purportedly sent to the Registrar, which he is required to do under the Tribunal Rules (and as is his usual practice).
9I find that the applicant did not send anything to the Tribunal prior to it issuing its Decision dismissing his Application. The applicant was warned that if he did not respond to the Tribunal's earlier direction by November 24, 2015, his Application might be dismissed as abandoned. He did not send anything in by that date or otherwise prior to the Decision, which he asks the Tribunal to reconsider.
10The applicant has failed to establish that the Decision under reconsideration is in conflict with established case law, that there are new facts that could be potentially be determinative of the case, or that there are other factors that outweigh the public interest in the finality of Tribunal decisions. Moreover, he does not suggest that he did not receive the Case Assessment Direction warning him of the consequences of not responding, and so there is no issue of "notice." Accordingly, I see no basis for exercising my discretion to reconsider my earlier Decision.
order
11The Request for Reconsideration is dismissed.
Dated at Toronto, this 4th day of August, 2016.
"Signed by"
_________________________________
Naomi Overend Vice-chair