HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Andrew Martin
Applicant
-and-
City of Orillia and Ontario Provincial Police
Respondents
RECONSIDERATION DECISION
Adjudicator: Keith Brennenstuhl
Indexed as: Martin v. Orillia (City)
WRITTEN SUBMISSIONS
Andrew Martin, Applicant
Self-represented
Introduction
1On July 17, 2017, the Tribunal issued its Decision in this Application, 2017 HRTO 1191 (the “Decision”), dismissing the Application. The Tribunal found that the applicant was out of time for filing his Application and that the delay was not incurred in good faith.
2The applicant seeks reconsideration of the Decision to dismiss his Application.
THE LAW
3Under 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.
4The 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.
5The 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.
6As 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
7In the Decision, the Tribunal found that the applicant had failed to demonstrate “good faith” within the meaning of section 34(2) of the Code in bringing the Application in a timely manner. The Application was therefore dismissed.
8In his Request the applicant indicated that the reason for his Request were the factors identified in rule 36.5 (a) and (c).
9With respect to the factor identified in rule 36.5 (a), it should be recalled that the applicant attempted to introduce new evidence in his closing written submissions that was not previously submitted at the preliminary hearing. In the Decision, the Tribunal indicated quite clearly that the new evidence would not be considered as to do so would have been procedurally unfair and prejudicial to the respondents.
10In any event the “so-called” new evidence appears to be a further medical note, but from a different doctor, that is consistent with the medical evidence introduced at the hearing upon which the Tribunal relied. Under the circumstances this new evidence clearly cannot be potentially determinative of the case. Moreover, this evidence, a medical note dated July, 2012 would clearly have been available prior to the hearing.
11Moreover, having a disability is not determinative of the issue of delay. The Tribunal concluded on the evidence that the applicant was not prevented by virtue of his disability from filing an Application within the stipulated timeframe. Reconsideration is not an opportunity to re-argue that point.
12Even if the applicant had succeeded in establishing on the evidence that the delay in filing he Application was due to disability-related incapacity, it would not have mattered in the least who or what caused the disability. The fact remains that the Tribunal found that he was not incapacitated by his disability, regardless of the cause.
13In my view, the applicant has not raised any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier as called for under Rule 26.5(a).
14Furthermore, I have determined that the factors at Rule 26.5(c) are also not present. The applicant has not adduced any inconsistent jurisprudence and therefore has failed to establish that the Decision is in conflict with established case law or Tribunal procedure.
15Nor has he established that the proposed reconsideration involves a matter of general or public importance. The applicant maintains that “[t]here is an argument to be made for the public interest.” In particular, he questions the public policy for medical Cannabis patients. I am sure that the applicant, who is a cannabis patient, would have concerns in this regard, however, the proposed reconsideration would simply re-examine the applicant’s delay in filing the Application. In this case, the Tribunal has no jurisdiction beyond that on a reconsideration. Clearly there is no basis for examining public policy.
16The request for reconsideration is denied.
Dated at Toronto, this 17th day of November, 2017.
“Signed by”
Keith Brennenstuhl
Vice-chair