Morgan v. Toronto Police Services Board, 2016 HRTO 1186

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jerome Morgan

Applicant

-and-

Toronto Police Services Board and Toronto Police Services

Respondents

RECONSIDERATION DECISION

Adjudicator: Maureen Doyle

Date: September 9, 2016

Citation: 2016 HRTO 1186

Indexed as: Morgan v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Jerome Morgan, Applicant

Osborne Barnwell, Counsel

Toronto Police Services Board and Toronto Police Services, Respondents

No submissions received

Introduction

1On January 19, 2016, the Tribunal issued its Decision in this Application, Morgan v. Toronto Police Services Board 2016 HRTO 80, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

BACKGROUND

2The Tribunal’s Decision found as follows:

• The Tribunal sent the parties a Notice of Hearing on July 8, 2015, notifiying them that a hearing was scheduled for January 25 and 2016, directing them to take certain steps in advance of the hearing and in particular, directing them to comply with Rules 16 and 17 of the Tribunal’s Rules of Procedure regarding pre-hearing disclosure by December 11, 2016;
• The applicant did not provide the Tribunal with the materials required under Rules 16 and 17 by December 11, 2016
• The respondents sent letters on December 21, 2015, January 5, 11 and January 18, 2016, noting the applicant’s failure to provide the materials required under Rules 16 and 17;
• The applicant did not provide any response to those letters;
• The Tribunal issued a Case Assessment Direction directing the applicant to submit the required materials by January 18, 2016, and warning him that if he did not do so or if he did not communicate with the Tribunal at all, the application may be dismissed as abandoned;
• The applicant did not file the required materials with the Tribunal by January 18, 2016, nor did he communicate with the Tribunal;
• The Application was dismissed as abandoned on January 19, 2016.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. There are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier and

b. Other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

THE LAW

4Under 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.

5The 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, last amended April 2014). 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.

6The Tribunal’s Practice Direction on Reconsideration includes the following statements:

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.

7As 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.

ANALYSIS AND CONCLUSIONS

8I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

9As indicated above, the applicant relies on Rules 25.6 (a) and (d). He submits that he had not abandoned the Application and that he had been trying to find someone to assist him with his case and also submits that he was trying to find a witness to the allegations contained in his Application. He indicates that after he was no longer represented by counsel at the Human Rights Legal Support Centre, he contacted two lawyers commencing December 5, 2015, who did not take his case. He also indicates that he met with a paralegal on or about January 11, 2016, who went over his paperwork and advised him that she had faxed a letter to the Respondents to seek an extension of time. He also states that he called the Respondents himself to ask for an extension, and that he did this on January 18, 2016. He notes that the Respondent’s counsel had written him a letter on January 20, 2016, acknowledging receipt of his January 19, 2016 voice mail and advising him that the Application had been dismissed by the time the applicant’s voice mail was heard. The applicant states that the Respondent’s counsel’s reference to a January 19, 2016 voice mail was in error, and he asserts that he made the call on January 18, 2016, the last day for him to contact the Tribunal. He states that he was “not sure who he should have contacted”. He states that he was unable to meet with counsel until February 17, 2016.

10The applicant submits that he was trying to secure legal representation and that now the Tribunal has before it “new facts of which it was not aware at the time it stated that it was apparent that the Applicant had abandoned his case….that was not so at all”. He submits that given the facts now before the Tribunal, it would be “fair and just” to allow the matter to proceed. He submits that there should be no concern about finality of Tribunal decisions in this case, as he has not had a hearing.

11The applicant submits that he is unsophisticated and unfamiliar with the Tribunal’s process. He also submits that he has not had his “day in court” and that it would not be just if the Application is not permitted to proceed, as, he was a victim of racial profiling and carding and was simply unable to “secure legal counsel in a timely manner”.

12The applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. The applicant does not indicate that he ever communicated with the Tribunal in respect of the December 11, 2016 deadline for compliance with Rules 16 and 17, in respect of the respondents’ various letters seeking dismissal on the basis of failure to comply with Rules 16 and 17, or significantly, in respect of the January 11, 2016 CAD which stated that “If the applicant has not complied with this direction by January 18, 2016 or communicated with the Tribunal at all, the Application may be dismissed as abandoned” [emphasis added].

13While the applicant indicates that he was unsure as to who to contact, it is clear that despite the warning contained in the January 11, 2016 CAD, which spoke of the possible consequence of not contacting the Tribunal at all by January 18, 2016, in addition to the fact that he did not comply with the disclosure requirements as explained in the CAD, he did not contact the Tribunal at all by January 18, 2016. Indeed the applicant did not contact the Tribunal until this Request for Reconsideration of the Decision.

14While it is clear that the applicant feels strongly about the allegations he has made in his Application, and wishes to have the opportunity to prove his allegations at a hearing, however, in weighing the circumstances recounted above, that is not sufficient to outweigh the public interest in the finality of Tribunal decisions. Further, and to be clear, the Application was not dismissed because the applicant was “unable to ‘secure legal counsel in a timely manner’ ”. Rather, and in light of the applicant’s complete failure to contact the Tribunal by January 18, 2016, the reasons for the dismissal of the Application are as recounted above.

15In sum, I 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. The Request is denied.