Matthews v. Manufacturers Life Insurance Company, 2016 HRTO 1112

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Philip Matthews

Applicant

-and-

The Manufacturers Life Insurance Company (Manulife Financial)

Respondent

RECONSIDERATION DECISION

Adjudicator: Naomi Overend

Date: August 22, 2016

Citation: 2016 HRTO 1112

Indexed as: Matthews v. Manufacturers Life Insurance Company

WRITTEN SUBMISSIONS

Philip Matthews, Applicant

Self-represented

INTRODUCTION

1The purpose of this Reconsideration Decision is to address the applicant’s Request for Reconsideration of the Tribunal’s Decision, 2016 HRTO 850 (the “Decision”). This Decision dismissed the Application.

BACKGROUND

2This Application, filed on January 26, 2015, alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3Following a summary hearing, which took place on April 6, 2016, the Tribunal issued a Decision on June 23, 2016 dismissing the Application on on the basis that the applicant had abandoned his Application when he hung up the phone part-way through the summary hearing, which took place by teleconference. The Vice-chair also addressed the parties’ submissions and found that the Application had no reasonable prospect of success.

4On July 22, 2016, the applicant filed a Request for Reconsideration of the Tribunal’s Decision challenging the Tribunal’s Decision to dismiss his Application.

ANALYSIS

5Section 45.7(1) of the Code provides that any party to a proceeding before the Tribunal may request that the Tribunal reconsider a final decision in accordance with the Tribunal rules.

6Rule 26.5 of the Tribunal’s Rules of Procedure states that 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.

The applicant relies on Rule 26.5 (c) and (d) in his Request for Reconsideration.

7Reconsideration is a discretionary remedy. That is, while the Tribunal has the power to reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the consideration of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

8The applicant states in the request for reconsideration that he “unable to cope or work with teleconference hearings.” The request for reconsideration is accompanied by three medical notes, apparently written by the applicant’s specialist, dated April 4, May 26 and July 7, 2016. Although two of them pre-date the Decision under reconsideration, they were only submitted to the Tribunal when the applicant filed the request for reconsideration.

9The April 4, 2016 letter, written two days before the summary hearing, states the following:

Due to his illness [the applicant] requires time, sensitivity and appropriate accommodation of his significant mental health problems regarding any correspondence and documentation from all organizations and individuals involved.

10The May 26, 2016 letter, written after the April 6, 2016 summary hearing, further outlines future accommodations:

At this stage, I recommend the following accommodation due to his disability: that all future meetings be held exclusively in person and not be held by tele-conference or phone. Otherwise, these other means of communicating will significantly increase his stress level and contribute to the deterioration of his mental and physical health.

11And, finally, the July 7, 2016 letter states:

In addition to my previous recommendations that all future meetings be held exclusively in person, I recommend that meetings be restricted to no more than 2 hours per day.

12In the narrative to the applicant’s request for reconsideration, he asserts the following:

Despite “a number of accommodation requests” directed to the HRTO and the Manufacturers Life representative ALL were ignored because all – the Registrar, the Vice-Chair, Manufactureres Life representatives – believe they know more about my mental and physical health issues than do I or my treating physicians.

13The applicant’s submissions on reconsideration suggest that the Tribunal disregarded the notes he sent to the Registrar requesting accommodation in advance of this summary hearing. In particular, the suggestion is that the Tribunal ought to have been aware that the applicant was requesting an in-person hearing prior to the teleconference summary hearing.

14The applicant had submitted a letter to the Tribunal, dated August 10, 2015, in which he said “any future in person hearing will have to occur in the Collingwood to Barrie corridor and cannot last longer than 3 hours and not occur on “consecutive days.” This letter was in relation to an anticipated hearing on the merits and was sent shortly after a mediation that failed to resolve the issues between the parties. It was not seen as a request that all hearings had to be “in person,” but simply as a request/demand that, should there be an in-person hearing, the Tribunal should apply certain conditions relating to location, timing and length.

15This interpretation is supported by the applicant’s subsequent correspondence. Following the Tribunal’s August 26, 2015 Case Assessment Direction directing a summary hearing by teleconference, the applicant wrote on August 28, 2015 asking that the Tribunal schedule any hearing on or after March 31, 2016. The Tribunal scheduled the summary hearing for April 4, 2016, from 9:30-12:30, in deference to his request. He did not make a request for an in-person hearing in this letter.

16After receiving the Notice of Summary Hearing, the applicant wrote the following in an email to the Tribunal dated September 13, 2015:

There are problems with the scheduling as my doctor, Dr. Malat at camh, believes the “safest” process for me [a necessary accommodation of my PTSD issues] would be an afternoon hearing [conference call] not exceeding two hours [a restriction necessary for ALL future hearings] made from camh facilities to ensure I will be able to address any significant reactions such as those resulting from unprofessional, unconscionable respondent threats to my benefits. He suggests April 4, 2016 dates but 1:30-3:30 pm as it allows for my safety and better fits his schedule. … [Square brackets in original text.]

17Again, there was no request to convert the teleconference into an in-person hearing. The start time for the hearing was moved from 9:30 a.m. to 1:30 p.m., again in response to the applicant’s request. Although the Tribunal did not officially shorten the hearing to the two hours requested by the applicant, the Decision notes that the applicant was advised at the outset of the summary hearing that many such calls last an hour or less.

18In any event, it would appear that it was not the length of the hearing that prompted the applicant to hang up the phone, but the fact that the Tribunal allowed the respondents to make argument on s. 45.1 of the Code. The Decision notes that the applicant advised the Tribunal that he believed he was being “ambushed” by the respondent, and when the Vice-chair indicated that she would allow the respondent to proceed with that argument (for reasons set out in the Decision), the applicant threatened to hang up the phone. The Vice-chair attempted to explain the consequences of so doing, but the applicant proceeded to act on his threat.

19It is clear from the above recitation of the facts that the applicant is wrong in saying that the Tribunal did not provide the accommodations requested in advance of the summary hearing. Even his doctor’s notes, provided after the hearing fail to state that the applicant was unable to participate in the summary hearing because it was not in person, but suggest only that future hearings be held in person to prevent an increase to his stress level, thereby triggering a deterioration in his condition.

20In his request for reconsideration, the applicant also suggests that the “Vice-Chair” ought to have read through all the medical notes in all the files for the Applications he has filed since 2010 to discern his accommodation needs. Setting aside for the moment the possible unfairness of this suggestion to the respondents, it ignores the fact that the applicant’s accommodation requests are something of a moving target. What he believes on one occasion to be sufficient, he denounces on another occasion as inappropriate.

21The applicant has failed to establish that the Decision is in conflict with established jurisprudence or Tribunal procedure, that it involves a matter of general or public importance, or that other factors exist that outweigh the public interest in the finality of Tribunal decisions.

22Although it is apparent that the applicant disagrees with the outcome of the Decision, he has not met the criteria set out in Rule 26.5 that must be satisfied in order for the Tribunal to grant a reconsideration request.

ORDER

23The Request for Reconsideration is denied.