Martel v. Ontario (Ministry of Community Safety and Correctional Services), 2016 HRTO 1274

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wayne Martel

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services

Respondent

RECONSIDERATION DECISION

Adjudicator: Mary Truemner

Date: September 29, 2016

Citation: 2016 HRTO 1274

Indexed as: Martel v. Ontario (Ministry of Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Wayne Martel, Applicant

Suzanne Martel, Representative

Introduction

1This Request for Reconsideration is with respect to the dismissal of an Application for Contravention of Settlement (“Application of Contravention”) which was filed under section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on April 9, 2015.

background

2The parties signed Minutes of Settlement on July 30, 2014, (“the Settlement”), resolving an earlier Application filed with the Tribunal. The applicant alleged that the respondent breached two of the terms of the Settlement.

3The Tribunal dismissed the Application for Contravention, (2016 HRTO 895), on July 6, 2016.

4On July 18, 2016, the applicant filed a Request for Reconsideration of the Tribunal’s decision with respect to one of the terms in the Settlement, the term which states:

The corporate Respondent sees no obstacle to the destruction of the Complainant’s fingerprints and photograph in accordance with the practice prescribed by law. The Applicant recognizes that jurisdiction over this issue rests with the Royal Canadian Mounted Police and not with any of the Respondents.

5In dismissing the allegation that the respondent had breached the above term, the Tribunal found at para. 22:

Having regard to the plain meaning of the terms of the Minutes of Settlement, I do not find that there has been any breach of the term relating to the destruction of the applicant’s records. The term clearly states that the respondent sees no obstacle to the destruction of the applicant’s fingerprints and photograph, in accordance with the practice prescribed by law. The term also clearly states that the applicant recognizes that jurisdiction over this issue rests with the RCMP, and not with any of the respondents. It also appears from the submissions of the respondent and the documents provided that the respondent requested that the RCMP destroy the applicant’s records, but that the RCMP was not prepared to do so at the time. In my view, the respondent’s actions have been consistent with the second term of the Minutes of Settlement at issue in this Application, and there has been no contravention of this term.

decision

6Under 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.

7The 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).

8Rule 26.5 states:

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.

9The 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.

10As 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.

11In support of the applicant’s request that the Tribunal reconsider its decision, the applicant points to what he claims is a new fact or evidence, namely, a document forwarded by the RCMP that the applicant obtained after the dismissal of the applicant’s Application of Contravention.

12The RCMP document is attached to the Request for Reconsideration. The applicant claims that it demonstrates that the respondent unfairly provided misleading information relied upon by the Tribunal in dismissing the Application of Contravention, and that the respondent somehow misled the applicant and the Tribunal about the process of how he might ensure his fingerprints and photograph are destroyed by the RCMP. Essentially, the applicant argues that even though it is the RCMP’s decision as to whether or not the fingerprints and photograph should be destroyed, the term of the settlement should have acknowledged that the OPP must request the RCMP to destroy the fingerprints and photograph.

13Upon reading the RCMP document, I do not agree that it contains facts or evidence that “could potentially be determinative of the case” as required under Rule 26.5(a). The RCMP document confirms that the person seeking the destruction of records must initiate the process by making a request to the originating police service, and then the police service is to make the request to the RCMP to have the records destroyed. While this step is not made clear in the relevant term of the Settlement, there is no new fact or evidence that could demonstrate that the respondent did not do something it agreed in the Settlement to do. Additionally, there is no new evidence which conflicts with the Tribunal’s considerations in making its decision to dismiss the Application of Contravention. It still appears that the police service did request that the RCMP destroy the applicant’s records, but that the RCMP was not prepared to do so at the time.

14The Request for Reconsideration is dismissed.