Cui Ling Qiu v. Toronto Police Service, 2017 HRTO 1231

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cui Ling Qiu

Applicant

-and-

Toronto Police Service

Respondent

RECONSIDERATION DECISION

Adjudicator: Yasmeena Mohamed

Date: September 20, 2017

Citation: 2017 HRTO 1231

Indexed as: Qiu v. Toronto Police Service

WRITTEN SUBMISSIONS

Cui Ling Qiu, Applicant

Self-represented

Toronto Police Service, Respondent

Glen K. L. Chu, Counsel

Introduction

1On August 4, 2017, the Tribunal issued its Decision in this Application, 2017 HRTO 1003, dismissing the Application on the grounds of timeliness and no reasonable prospect of success. On September 5, 2017, the applicant filed a Request for Reconsideration of the decision.

THE REQUEST FOR RECONSIDERATION

2The applicant’s reason for requesting reconsideration is that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

3More specifically, the applicant submits the following:

• the Application is timely because her main complaint against the respondent refers to events that occurred in 2016 and not 2012;
• her legal counsel (paralegal) that represented her at the summary hearing on July 27, 2017 failed to examine and disclose the documentary evidence she had prepared for the Tribunal;
• approximately an hour before the commencement of her summary hearing, her legal counsel informed her that she does not do human rights cases and requested she find another lawyer;
• she was unable to find a new lawyer to represent her because most lawyers were on vacation during the summer; and
• based on the information provided by the respondent to the USA Customs she and her family were refused entry into the USA because they assumed she was convicted with criminal charges.

4In addition, the applicant submitted several documents to substantiate her request for reconsideration, which included: a letter from the respondent denying her request for the destruction of her criminal records, two letters of appeal, authored by two separate legal entities on behalf of the applicant, appealing the respondent’s denial letter; an investigation report prepared by the respondent in response to the applicant’s complaint regarding the respondent’s policies, a letter of complaint from the applicant regarding her “poor” legal representation and various email exchanges between the applicant and her legal counsel (collectively known as “documents”).

5In its response to the request for reconsideration, the respondent argues that the investigation report submitted by the applicant is inadmissible because it was prepared in response to a complaint to the Office of the Independent Police Review Director, pursuant to Part V of the Police Services Act, R.S.O. 1990. c. P.15 (“PSA”), and s.83 (8) of the PSA bars its admissibility in a civil proceeding. The respondent requests that the Tribunal not consider the investigation report in the applicant’s reconsideration request.

ANALYSIS AND CONCLUSIONS

Admissibility of Investigation Report

6Part V of the PSA sets out the processes for addressing disciplinary hearings, external public complaints, and internal complaints made whether by the Chief of Police about the conduct of a police officer or a police services board about the conduct of a Chief of Police or Deputy Chief of Police. Section 83(8) of the PSA renders inadmissible in a civil proceeding documents prepared as a result of the above complaints made under Part V of the PSA. Section 83(8) states the follows:

(8) No document prepared as the result of a complaint made under this Part [Part V of the PSA] is admissible in a civil proceeding, except at a hearing held under this part.

7The Tribunal has held that this Tribunal proceeding is a “civil proceeding” within the meaning of s. 83(8) of the PSA. See McWilliam v. Toronto Police Services Board, 2016 HRTO 934.

8In McWilliam, the Tribunal found that s.83(8) of the PSA is an absolute bar to the admissibility of documents prepared under Part V of the PSA in civil proceedings. The Tribunal held at para. 28:

The wording of s.83(8) is absolute. It states that no document prepared as the result of a complaint made under Part V of the PSA is admissible in a civil proceeding, except at a hearing held under that Part. Although provisions such as s.83(8) are commonly referred to as statutory privileges, the courts have characterized them as an “absolute bar” to admissibility (Sutherland, above, at para. 44) and a “blanket prohibition against the admissibility (Conroy, above, at para. 55). In my view, the disclosure of documentation by a party cannot render these documents admissible contrary to the absolute statutory bar enacted by the legislature in s.83(8) of the PSA.

9Section 83(8) of the PSA applies to documents “prepared as a result of a complaint” made under Part V of the PSA. The complaint made under Part V of the PSA in this case was the policy complaint made by the applicant to the Independent Police Review Director. The investigation report was generated directly in response to the policy complaint made by the applicant under Part V of the PSA. The investigation report is therefore clearly covered under s.83(8) of the PSA. As such, it is inadmissible in this proceeding and will not be considered in the applicant’s reconsideration request.

Request for reconsideration

10Under 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.

11The 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. See 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.

12The 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.

13As 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.

14I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

15As indicated above, the applicant alleges that there are new facts that could potentially be determinative of the case and that could not reasonably have been obtained earlier. The only new facts the applicant has alleged is that her paralegal had poorly represented her at the summary hearing, she was asked to find a new lawyer an hour before her summary hearing, and she was unable to find a new lawyer because of the summer holidays. Otherwise, the applicant essentially repeats arguments made orally before the Tribunal, and discloses documents that merely corroborate those repeated arguments. The new facts refer essentially to the applicant’s dissatisfaction with the conduct of her legal counsel at the summary hearing and difficulty in securing new counsel. The new facts and documents do not relate to any of the alleged Code violations expressed in the Application.

16Accordingly, I find that the facts and the documentary evidence, with the exception of the complaints against her paralegal, are not new facts that may potentially be dispositive of the Application and/or that could not reasonably have been obtained earlier. In addition, the applicant did not raise any concerns regarding the lack of legal representation at the outset of the summary hearing, nor did she request any adjournment of the summary hearing on account of this.

17A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. It is important to note that the issues raised in this request for reconsideration were the subject of submissions before the Tribunal, and dealt with in its Decision. In Sigrist and Carson v. London District School Board, 2008 HRTO 34, 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 extensive submissions in this request for reconsideration amount to additional arguments on issues already fully canvassed before the Tribunal.

18In 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.

ORDER

19The applicant’s Request for Reconsideration is denied.