Perepelytsya v. Ontario Provincial Police, 2016 HRTO 136

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maksym Perepelytsya

Applicant

-and-

Ontario Provincial Police, Mazerolle & Lemay Law Firm,

Engel and Associates Professional Corporation,

Gravel Charest Fisher Law Firm and Legal Aid Ontario

Respondents

-and-

Valoris for Children & Adults Prescott-Russell

Affected Party

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: January 29, 2016

Citation: 2016 HRTO 136

Indexed as: Perepelytsya v. Ontario Provincial Police

WRITTEN SUBMISSIONS

Maksym Perepelytsya, Applicant

Self-represented

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2015 HRTO 805 dated June 17, 2015 (the “original Decision”), which dismissed the Application. This Decision also will address the applicant’s Request for Order dated July 13, 2015 seeking to add Valoris for Children & Adults Prescott-Russell (“Valoris”) as a party respondent to this proceeding.

2On June 18, 2015, the applicant filed a Request for Reconsideration of the Tribunal’s Decision. The applicant subsequently filed a Request for Order dated July 13, 2015 seeking to add Valoris as a party respondent together with supporting materials, and then filed further submissions and materials in support of his Requests by letters dated August 3 and August 21, 2015. All of these submissions and materials have been reviewed and considered for the purpose of this Decision.

Request for Reconsideration

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), provides as follows:

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.

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The Tribunal has issued rules governing such requests as well as a Practice Direction on Reconsideration to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers.

5The Tribunal’s Practice Direction on Reconsideration includes the following:

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.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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.

7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an Application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

8The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 of the Rules provides:

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.

9As a result, I need to determine whether the material filed by the applicant in support of his Request for Reconsideration satisfies the criteria set out in Rule 26.5 upon which the applicant relies in his Request. The applicant relies upon the criteria identified in Rule 26.5(a).

10I find that there are in fact no new facts or evidence submitted by the applicant that could potentially be determinative of the case and that could not reasonably have been obtained earlier. Attached to his Request for Reconsideration, the applicant submitted an order from the Superior Court of Justice, Family Court dated January 6, 2012 imposing costs on the applicant’s former legal counsel in that proceeding and ordering counsel to release his file to the applicant, together with a handwritten endorsement. This order and endorsement was known to the applicant at the time it was issued and dates from over three years prior to the summary hearing in this matter which was held on February 12, 2015, and therefore cannot be regarded as new facts or evidence.

11The applicant also filed the transcript of the oral reasons given by Justice Toscano on January 23, 2015 for dismissing the charges of child abduction against the applicant and finding him not guilty. The result of the criminal trial was known to the applicant at the time of the summary hearing in this matter, and is referenced in my original Decision at para. 8. This transcript therefore also does not constitute new facts or evidence.

12Finally, the applicant has submitted an affidavit sworn by a Child Protection Worker employed by Valoris which is dated June 26, 2015 and various other materials relating to his ongoing custody dispute with his ex-spouse. While these materials clearly do post-date my original Decision in this matter, these materials do not provide any new facts or information relevant to the allegations raised in the applicant’s original Application that would change my original Decision in this matter.

13With regard to the applicant’s allegations against the Ontario Provincial Police (“OPP”), the applicant basically repeats the same allegations that he raised in his Application and that were considered and dismissed in my original Decision. The applicant relies upon the evidence given by his ex-spouse in the context of the criminal proceeding, as referenced in the oral reasons for decision, confirming that her boyfriend’s father was a retired OPP officer. With respect, the underlying fact that the applicant’s ex-spouse was involved in a relationship with the son of a retired OPP officer was not the issue at the summary hearing. The issue was that, even accepting this underlying fact, the ground of “marital status” has not been interpreted to extend to the identity of the father of an ex-spouse’s boyfriend, as expressed in my original Decision at para. 10.

14I further note that the oral reasons in the criminal proceeding are not helpful to the applicant in relation to his allegations against the OPP, which were found to lack “any air of reality” and were rejected as “unsubstantiated allegations”.

15The applicant also takes issue with my use of the phrase “sought to claim” his rights under the Code at para. 12 of the original Decision, and asserts that he did claim his rights. Once again, that is not the issue. As addressed at paras. 12 and 13 of my original Decision, the issue is that reprisal cannot be asserted by the applicant with regard to allegations that arose prior to when he says he claimed his Code rights, and the applicant does not have any reasonable prospect of establishing that any later alleged events were carried out with an intention to reprise against him for claiming his Code rights.

16With regard to his allegations against the Mazerolle & Lemay Law Firm, the applicant points to the endorsement from January 2012 as evidence that Mr. T. failed to file material with the court. Once again, that is not the issue. The issue is that the applicant has not provided any basis to link any alleged deficiencies in Mr. T.’s work to any ground protected under the Code, as discussed in my original Decision at paras. 16 and 17. Further, the applicant now states that he did not speculate at the summary hearing that his ex-spouse may have some connection to Mr. C., which he certainly did at the time. In any event, there is no basis to support the applicant’s allegation that he experienced discrimination by this respondent because of his marital status or any other Code-protected ground claimed in the Application.

17With regard to the comment alleged to have been made by Mr. C., the applicant simply repeats the same arguments made at the summary hearing and does not provide any basis or new evidence to alter my conclusion that, as Mr. C. was not providing any “service” to the applicant at the relevant time, any such comment simply was not covered under the Code, as discussed at para. 18 of the original Decision.

18I also note that the allegations against this respondent also were dismissed for delay, and there is nothing in the applicant’s reconsideration request which provides a good faith explanation for his delay in raising these allegations.

19Finally, with regard to this respondent, the applicant correctly notes that he moved from the Russell County area, and not the Renfrew area as stated at para. 19 of the original Decision. That error, however, does not change the conclusions reached in the original Decision.

20With regard to his allegations against Engel and Associates Professional Corporation, the applicant merely repeats the same arguments raised at the summary hearing and fails to provide any basis or new evidence to alter the conclusion reached in my original Decision.

21With regard to his allegations against the Gravel Charest Fisher Law Firm, once again the applicant simply repeats the same arguments made at the summary hearing and fails to provide any basis or new evidence to support that Mr. F. was providing any “service” to the applicant, given that he was acting as opposing counsel for the applicant’s ex-spouse, as discussed at paras. 21 and 22 of the original Decision.

22With regard to his allegations against Legal Aid Ontario, the applicant repeats the same arguments made at the summary hearing, and does not provide any basis or new evidence to link this respondent’s actions to any ground protected under the Code, as addressed at paras. 23 and 24 of the original Decision.

23As a result, I am not satisfied that the applicant has provided any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

24Accordingly, the applicant’s Request for Reconsideration is denied.

Request to add Volaris as a party respondent

25The applicant filed a Request for Order seeking to add Volaris as a party respondent to this proceeding, and has raised allegations against Volaris dating back to September 2011. The applicant also takes issue with certain statements made in the affidavit from a Volaris employee dated June 26, 2015 and filed by counsel for the applicant’s ex-spouse in the family court proceeding.

26The fundamental problem with the applicant’s Request is that, at the time the Request was made and as confirmed in this Decision, the Application to which the applicant seeks to add Volaris as a party respondent has been and continues to be dismissed. As a result, there is simply no extant proceeding to which the applicant is capable of requesting that Volaris be added as a party.

27Moreover, if the applicant takes issue with statements made in the affidavit, then the family court proceeding is the appropriate forum in which to raise such issues, not before this Tribunal. Once again, while the applicant disagrees with certain statements made in the affidavit, he has not provided any basis to link such disagreements to any ground protected under the Code. I further note that there is a significant issue of delay relating to the applicant’s allegations against Volaris, most of which pertain to events that occurred some three to four years before the applicant’s Request.

28For all of these reasons, the applicant’s Request to add Volaris as a party respondent is denied.