Olumuyiwa Falodun v. Ronald Lemckert, 2016 HRTO 770

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Olumuyiwa Falodun

Applicant

-and-

Ronald Lemckert

Respondent

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta

Date: June 7, 2016

Citation: 2016 HRTO 770

Indexed as: Falodun v. Lemckert

WRITTEN SUBMISSIONS

Olumuyiwa Falodun, Applicant

Self-represented

Introduction

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), in which he alleged discrimination in respect of services on the basis of disability and reprisal contrary to the Code. He alleged that the respondent, a physician with a speciality in otolaryngology to whom the applicant was referred for consultation by his family doctor, failed to accommodate his disability and reprised against him when he complained about the discriminatory conduct.

2A hearing on the merits took place in Hamilton, Ontario, following which a decision was issued dismissing the Application (2016 HRTO 737).

3On May 31, 2016, the Tribunal received a Request for Reconsideration (Form 20) from the applicant along with written submissions. The respondent has not been called upon to file a Response to the Reconsideration Request and he has not done so.

4The applicant argues that reconsideration is warranted in this case on the grounds that the decision is in conflict with established jurisprudence or Tribunal procedure and the reconsideration involves a matter of general or public importance and other factors exist that outweigh the public interest in the finality of Tribunal decisions and orders.

5This is the Tribunal’s Decision on the Request for Reconsideration.

Request for Reconsideration

6Section 45.7 of the Code provides the Tribunal with explicit authority to reconsider its decisions:

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.

7Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration 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).

8Most relevant to this decision is Rule 26 which reads, in part, as follows:

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 and orders.

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.

11The applicant has based his request on Rule 26.5(c) and (d).

12In his submissions, the applicant argues that an act of reprisal was established by the mere fact that the respondent terminated medical services upon receipt of the applicant’s letter to him, dated June 18, 2015. He argues that the respondent was “visibly upset” by that letter and that the Tribunal ignored the applicant’s argument that the timing of the termination of the doctor-patient relationship is evidence of intention.

13Having reviewed the Form 20 and submissions, I find that the arguments raised by the applicant are essentially reiterations of positions that he articulated during the hearing and in previous written materials.

14In paragraphs 29 through 32 of the decision dismissing this Application, the Tribunal held as follows on the issue of reprisal:

In order to establish that the applicant was subject to reprisal contrary to the Code, he must establish, on a balance of probabilities:

• An action taken against, or a threat made to, him;

• That the action or threat is related to him having claimed or attempted to enforce a right under the Code; and

• An intention on the part of the respondent to retaliate for the claim or attempt to enforce the Code protected right.

See Noble v. York University, 2010 HRTO 878 at paras. 31-33.

While I am able to accept that the first two elements of the test set out in Noble may be met given that the applicant was delayed in receiving services and the decision to discontinue service followed on the heels of the applicant’s letter alleging a breach of his Code rights, I find that the applicant has not established that the respondent intended to retaliate against him for making a claim or signalling an intention to enforce a right protected under the Code.

I accept the evidence of the respondent that he asked the applicant’s family doctor to make another referral because he was of the view that there had been a breakdown in trust between the parties and that it would not be possible to continue in a therapeutic relationship given the potential that a legal proceeding would be initiated. In my view, there is no evidence of an intention to harm or retaliate against the applicant.

As such, the applicant has not established that he experienced reprisal contrary to the Code.

15The applicant argues that the respondent was “visibly upset”, something he would have had no way of knowing, given that he was not present at the time the respondent received his letter. He also argues that the timing of the termination of the relationship should be determinative of the issue of whether reprisal took place.

16As indicated above, the Tribunal addressed the issue of intention in arriving at the conclusion that the applicant had not met his burden. The Tribunal accepted the evidence of the respondent that he had no intention to harm or retaliate against the applicant and his testimony that his assessment, in accordance with guidelines prescribed by his professional regulator, was that the threat of litigation by the applicant made beginning or continuing a therapeutic relationship untenable.

17Although it is apparent that the applicant has a strongly held view that he experienced discriminatory treatment and reprisal, he has not persuaded me that factors exist in this case that warrant reconsideration of the Decision made to dismiss the Application. As such, I find no basis to grant reconsideration of the Tribunal’s Decision of May 30, 2016.

18The Request is denied.