HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gregory Harris-Saunders
Applicant
-and-
City of Toronto, Rob Gillis, Danny Fieldhouse,
Ron MacDonald, and Huntley Cowie
Respondents
-and-
Toronto Civic Employees Union, Local 416
Intervenor
RECONSIDERATION DECISION
Adjudicator: Josée Bouchard
Indexed as: Harris-Saunders v. Toronto (City)
WRITTEN SUBMISSIONS
Gregory Harris-Saunders, Applicant
Self-represented
Introduction
1On March 17, 2016, the Tribunal issued an Interim Decision, Harris-Saunders v. Toronto (City), 2016 HRTO 344 (“Interim Decision”), in this Application. The Interim Decision dismissed the allegations of May 2013, August 2013, October 2013 and March 2014 for delay pursuant to section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant has asked the Tribunal to reconsider its Interim Decision. In accordance with the Tribunal’s procedures, the respondents and intervener have not been invited to make submissions on the Reconsideration Request.
2Section 34 of the Code requires an applicant to file an Application within one year of the incident to which the Application relates or within one year of the last in a series of events. If that time limit is not met, the Tribunal may not deal with the Application unless the Tribunal is satisfied that the delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay.
3The Interim Decision found that the allegations of May 2013, August 2013, October 2013 and March 2014 in the Application were not filed within the time limit established by section 34 and that the applicant had not satisfied the Tribunal that the delay was incurred in good faith and that no substantial prejudice would result to the respondents and dismissed the Application.
4The Request for Reconsideration mistakenly relies on the “An Applicant’s Guide to Judicial Review” found on the Human Rights Legal Support Centre website. An application for judicial review of a decision of the Tribunal is made to the Divisional Court, a branch of the Ontario Superior Court of Justice. A request for reconsideration to this Tribunal is a process pursuant to Rule 26 of the Rules of Procedure, where a party may request reconsideration of a final decision of the Tribunal within 30 days from the date of the decision.
5Notwithstanding this error, I have reviewed the request for reconsideration and provide the following analysis and decision.
The Reconsideration Test
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 on Reconsideration to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers. 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.
8The Tribunal’s Practice Direction on Reconsideration begins with the following statements:
Parties may ask the HRTO to reconsider a final decision. The HRTO may also reconsider a decision on its own initiative where it considers it appropriate.
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.
The rules for reconsideration are found in Rule 26 of the Rules of Procedure. A request for reconsideration will only be granted if the request meets one of the requirements in Rule 26.5 […]
Examples of situations where the HRTO has reconsidered its decision are:
where a party, through no fault of its own, did not receive notice of a hearing or request for submissions; or
where exceptional factors exist that outweigh the public interest in the finality of decisions including inconsistencies in the HRTO's case law.
9As 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.
10Under Rule 26.1, only “final” decisions qualify for a reconsideration request. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 , the Tribunal determined that even an interim decision may be “final” where it disposes of some or all of the central issues in the application. I am satisfied that the Interim Decision in the matter before me disposes of some of the central issues in the Application and, on this basis, the Tribunal’s reconsideration process is available.
11In his Request for Reconsideration, the applicant raises the following arguments: the applicant provided his disability and lack of medical treatment as reasons for the delay in filing his Application; the Interim Decision mentions the back injury but not the injury to the applicant’s neck; the Interim Decision changes what is written in the Application; and the Interim Decision affects the applicant’s right to be heard and his ability to present his case.
12The applicant alluded to the impact of his disability and medical treatment on the timeliness of his Application, in the Application form itself, but failed to provide an explanation correlating his disability and/or lack of medical treatment with the timeliness of the Application. The applicant was provided with an opportunity to provide this explanation in response to the respondents’ request for order asking to dismiss on the basis of delay. He did not do so in the 14 day period set out in the request. He was reminded of the need to do this in the Case Assessment Direction dated February 11, 2016. The applicant’s submissions on reconsideration are simply a further attempt to argue whether the delay was incurred in good faith.
13The applicant also observes or argues that the Interim Decision changes what is written in the Application and will affect his right to be heard and his ability to present his case. Having considered the applicant’s Request for Reconsideration, 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.
14I am seized of this matter.
Dated at Toronto, this 14th day of April, 2016.
“Signed By”
Josée Bouchard
Vice-chair