Barksey v. Health Sciences North or Ramsey Lake Health Centre, 2016 HRTO 141

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Curtis Barksey Applicant

-and-

Health Sciences North or Ramsey Lake Health Centre, Pavan Koka, Angelita Sanchez, Kuppuswami Shivakumar and Elandu Okowonkro Respondents

RECONSIDERATION DECISION

Adjudicator: David Muir Date: January 29, 2016 Citation: 2016 HRTO 141 Indexed as: Barksey v. Health Sciences North or Ramsey Lake Health Centre

WRITTEN SUBMISSIONS

Curtis Barksey, Applicant Self-represented

Introduction

1On December 10, 2015, the Tribunal issued its Decision in this Application, 2015 HRTO 1670, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

BACKGROUND

2On October 6, 2015, 2015, the Tribunal issued a Case Assessment Direction (“CAD”) in which, amongst other issues raised, the applicant was directed to make submissions on whether or not the Application was outside of the Tribunal’s jurisdiction because it was filed beyond the one year time limit in section 34(1) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”).

3Under the Tribunal’s jurisprudence, an Application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the Application that it does not fall within its jurisdiction. See for example, Masood v. Bruce Power, 2008 HRTO 381 and Belcastro v. Metrolinx Go Transit, 2012 HRTO 2121.

4The Tribunal’s Decision found that the Application must be dismissed because it was plain and obvious that the applicant had failed to provide a good faith explanation for the delay in filing the Application.

THE REQUEST FOR RECONSIDERATION

5In his Request for Reconsideration the applicant relies on the following reasons, why the Tribunal should reconsider its Decision:

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

b. That he was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; and

c. That the Decision request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.

6The respondents were not called upon to respond to the Request.

THE LAW

7Under 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.

8The 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.

9The 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.

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.

ANALYSIS AND CONCLUSIONS

11I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

12As indicated above, the applicant relies on Rule 26.5 (a), (b) and (c).

13In support of his Request, the applicant largely repeats arguments already made before the Tribunal. The applicant argues that he submitted voluminous evidence of his past legal activities that occupied his time and he assumed that this evidence would suffice. It is true that the applicant filed a great number of documents related to a prior Application and other legal proceedings in which the applicant has been involved over the past several years. This material was all considered and referred to in the Decision.

14The applicant argued that his disability has already been established. It is not clear on what basis he makes that submission. He refers to a prior Application which was settled without a decision of the Tribunal. In any case, the issue is not whether the applicant is a person with a disability, for the purposes of these Decisions I have assumed that he is a person with a disability, but as pointed out in the Decision, the question was whether or not there was evidence that established that the applicant was prevented from filing the Application because of a disability as opposed to other reasons, such as the extensive litigation he was involved in. I found that there was no evidence that would establish that the applicant was prevented from filing the Application because of a disability related impairment. The applicant may disagree with that conclusion but that is not a basis for reconsideration.

15The applicant relies on a new note from his physician dated December 22, 2015. The note does not add much to the previous material already considered. At best, the note records that the applicant reported to his physician that it “was impossible for him to carry out all his tasks simultaneously”. I have considered this new medical information and am not satisfied that taking it at its highest, it is sufficient to establish that the applicant was prevented by a disability related impairment from filing this Application in a timely manner.

16There is nothing before me suggesting that the applicant was entitled to but did not receive notice of the proceeding or a hearing. The applicant appears to suggest that because the Tribunal did not specifically ask him for medical information to substantiate the delay that the Decision is unfair. The Tribunal is unable to anticipate what a party’s position will be on any given issue. The issue before the Tribunal was clearly set out in the Case Assessment Direction issued on October 6, 2015. It is for the parties to make their arguments and present the information they intend to rely upon. In any case as indicated above, the medical information provided after the Decision does not establish that the applicant was prevented from filing this Application because of a disability.

17The applicant made a number of other submissions about the state of his health and his various legal activities in 2012, 2013 and 2014. Much of these are submissions that were made and considered prior to the Decision or if not could have been but were not. In any event, the new arguments do not support the conclusion that the applicant was prevented from filing this Application before he did because of a disability related impairment.

18It is important to note that the issues raised in this Request were the subject of submissions before the Tribunal, and dealt with in its Decision. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 (“Sigrist”), the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties 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. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

19The applicant argued as well that the Decision is in conflict with established Tribunal jurisprudence but points to no other Decision with which it does conflict. The Tribunal also stated in Sigrist, above, that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. While the applicant clearly disagrees with the conclusions of the Tribunal, I am satisfied that its submissions on this Request do not establish that the Tribunal’s Decision conflicts with established jurisprudence.

20In 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.

Other Matters

21Finally I note that the applicant made a number of comments at the conclusion of his Request that are clearly inappropriate. In particular the applicant suggests without foundation that the Decision was informed by prejudice and discrimination and that it was defected and/or criminal amongst other unfounded and inappropriate comments. The applicant has another active Application before the Tribunal and is reminded of the Tribunal’s expectations of the parties who appear before it.

22In Ouwroulis v. New Locomotion, 2009 HRTO 335, at paras. 4-7, the Tribunal stated as follows:

Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code. When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.

23In Cochrane v. Workplace Safety and Insurance Board, 2010 HRTO 913 at paras. 8-9, the Tribunal stated as follows:

Parties to a Tribunal application are engaged in a dispute which has been brought before the justice system. Before the Tribunal, as in courts and other tribunals, each side is entitled to access these dispute resolution processes, and may make submissions supporting their point of view. The Tribunal’s process provides access to a fair and neutral decision maker, who decides the application based upon his or her findings of facts and law as they apply to a particular case.

It is understandable that parties may have strong feelings about the events that gave rise to the dispute. They may disagree strongly with the submissions made by each other, be upset about the fact that the matter is before the Tribunal, or disagree with decisions made by the adjudicator. Parties and their representatives are required, however, to conduct themselves in the Tribunal’s process with courtesy and respect for each other and the Tribunal. While it is proper to express disagreement with another party’s submissions or evidence, it is never acceptable to descend into personal insults, the use of uncivil language, or discriminatory comments.

24The applicant is also reminded of the Tribunal’s Rule of Procedure A7.1 which provides:

All persons participating in proceedings before or communicating with the Tribunal must act in good faith and in a manner that is courteous and respectful of the Tribunal and other participants in the proceeding.

25The Tribunal has the power, pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (“SPPA”), and its Rule a8.1 to make such orders or give such directions in proceedings before it as it considers proper to prevent abuses of its process. The Tribunal has applied this power to make appropriate Orders including in certain cases the dismissal of an Application where parties have engaged in vexatious conduct in the Tribunal’s process. See for example Nouraghighi v. Toronto Catholic District School Board, 2009 HRTO 2085; Okunbor v. Hopewell Logistics, 2009 HRTO 2124 and Vizcaya v. University of Toronto 2012 HRTO 916.