Phillips v. Minister of Community Safety and Correctional Services (Ontario Provincial Police), 2017 HRTO 1148

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rameel Phillips

Applicant

-and-

Her Majesty the Queen in right of Ontario

as represented by the Minister of Community Safety

and Correctional Services (Ontario Provincial Police)

and Steven Large

Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: September 5, 2017

Citation: 2017 HRTO 1148

Indexed as: Phillips v. Minister of Community Safety and Correctional Services (Ontario Provincial Police)

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2017 HRTO 359 dated March 27, 2017, which dismissed the Application.

2On April 11, 2017, the applicant filed a Request for Reconsideration of the Tribunal’s Decision.

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 relied upon in the Request. The applicant relies upon the criteria identified in Rule 26.5(d).

10In his reconsideration request, the applicant states that he was unable to attend the hearing in this matter that was scheduled to proceed on March 27 and 28, 2017 because his legal counsel, which the applicant states was from the Human Rights Legal Support Centre (“HRLSC”), was not available on those dates. He states that this legal counsel advised him to request an adjournment, and that legal counsel would also e-mail the respondent once the applicant had made this request. The applicant states that he did request an adjournment, and that the respondents did not oppose this request. He states that respondent counsel advised him to e-mail the Tribunal directly, and that he should include the respondents and his legal counsel to make sure that his counsel followed up. The applicant states that he followed these instructions, and was waiting for a decision on his adjournment request.

11The Tribunal has no record of the applicant having retained legal counsel, and no counsel from the HRLSC advised the Tribunal that he or she was on record for the applicant in this matter. The HRLSC appears as counsel in many matters before this Tribunal, and if they had been retained to represent the applicant for the purpose of the hearing, they know how to get on record with this Tribunal and routinely do so. Given the fact that the Tribunal received no such contact from the HRLSC, I can only conclude that while the applicant may have spoken with someone at the HRLSC and may have been informed that they were unavailable to represent him on the scheduled hearing dates and that the applicant should see whether he could get an adjournment, the HRLSC was not formally retained to represent the applicant in this matter.

12As stated in my original Decision in this matter, I issued a Case Assessment Direction (“CAD”) on March 13, 2017 noting that the applicant had failed to file his hearing materials, and directed him to do so by March 20, 2017. This CAD was sent to the applicant by regular mail, courier and e-mail. The applicant clearly received a copy of this CAD, as he responded to it by e-mail sent to respondent counsel on March 20, 2017.

13The applicant’s e-mail of March 20, 2017, which was sent to respondent counsel and not to the Tribunal, expressed the applicant’s desire to complete the tasks required to proceed with the hearing and asked whether there was anything else he needed to do on his end. This was the deadline for the applicant to comply with the directions set out in my CAD, which the applicant already had been obligated to do by no later than 45 days prior to the first day of hearing in this matter.

14Respondent counsel responded to the applicant on March 20, 2017 to advise him that another counsel would be acting in this matter, and copied new counsel as well as the Tribunal’s Registrar. In this correspondence, respondent counsel makes reference to a second e-mail which had been sent by the applicant, presumably also on March 20, 2017, requesting an adjournment of the hearing. This e-mail also was not sent to the Tribunal.

15New counsel for the respondent responded to the applicant’s e-mail on March 20, 2017, advising the applicant if he wanted to request an adjournment of the hearing, then he needed to ask the Tribunal. She also advised the applicant that if he had retained counsel to represent him at the hearing, then it was customary for new counsel to advise the Tribunal that she or he was on the record in this matter and that counsel was not available for the scheduled hearing dates. Respondent counsel indicated that she would not oppose the applicant’s adjournment request if she could get a firm date for disclosure of the applicant’s documents.

16This was followed by an e-mail to the parties from the Tribunal dated March 21, 2017. This e-mail states:

The Tribunal has not yet received any request from the applicant to adjourn the hearing in this matter, or the basis for any such request. The applicant should be aware that a hearing will only be adjourned at this late stage in exceptional circumstances.

17No further correspondence was received from the applicant in response to the Tribunal’s e-mail, and the applicant failed to appear at the hearing.

18While it appears that the applicant raised the prospect of a potential adjournment of the scheduled hearing dates with respondent counsel, he did not ever make an adjournment request to this Tribunal, as he was told to do by respondent counsel and by the Tribunal. In these circumstances, in my view, it is not appropriate for the applicant to say that he was waiting to see whether he would get an adjournment, when no such request in fact had been made by him to the Tribunal.

19Further, even if the applicant thought he had made a proper adjournment request, when he received no response to this request from the Tribunal by the time of the first scheduled hearing date on March 27, 2017, it was incumbent upon him to attend the hearing. It was not appropriate for him to simply ignore the fact that these hearing dates had been scheduled for some time, to put the Tribunal and the respondents to the inconvenience of having to prepare and appear for the scheduled hearing dates, and simply not appear himself.

20In my view, in consideration of all of these circumstances, I am not satisfied that any factors exist that outweigh the public interest in the finality of Tribunal decisions.

21For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.