Atas v. Law Society of Upper Canada, 2017 HRTO 1520

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nadire Atas

Applicant

-and-

Law Society of Upper Canada

Respondent

A N D B E T W E E N:

Nadire Atas

Applicant

-and-

Dale and Lessman LLP, Stikeman Elliot LLP and Law Society of Upper Canada

Respondents

A N D B E T W E E N:

Nadire Atas

Applicant

-and-

Peoples Trust Company

Respondent

A N D B E T W E E N:

Nadire Atas

Applicant

-and-

Ralph Steinberg and Law Society of Upper Canada

Respondents

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: November 20, 2017

Citation: 2017 HRTO 1520

Indexed As: Atas v. Law Society of Upper Canada

WRITTEN SUBMISSIONS

Nadire Atas, Applicant

Self-represented

Introduction

1On June 12, 2017, the Tribunal issued its Decision in these Applications, 2017 HRTO 649 ("Decision"), dismissing these Applications. The applicant has asked the Tribunal to reconsider its Decision.

2The applicant has also filed a Request for Reconsideration of the Tribunal's Interim Decision 2016 HRTO 894 ("Interim Decision"), denying amongst other things anonymization of any decisions in these cases.

3For the reasons that follow both Requests are denied.

BACKGROUND

4The Tribunal's Decision found that these Applications must be dismissed for a number of reasons, including that several of them were outside of the Tribunal's jurisdiction to decide or because they had no reasonable prospect of success.

5In particular the Tribunal concluded as follows:

a. 2011-09558-I was dismissed because there were no allegations made against the respondent in the Application 2011-09578-I was dismissed because it was outside of the Tribunal's jurisdiction to decide;

b. 2011-09588-I was dismissed because it had no reasonable prospect of success;

c. 2011-09579-I was dismissed because it was outside of the Tribunal's jurisdiction to decide and pursuant to section 34(11) of the Code.

THE REQUESTs FOR RECONSIDERATION

6In her Request for Reconsideration the applicant relies on the following reasons why the Tribunal should reconsider its Decision:

a. That there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier

b. That the Decision request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance;

c. That other factors exist which outweigh the public interest in the finality of Tribunal decisions.

7The respondents were not called upon to respond to the Request.

8The applicant filed voluminous submissions in making this Request and requested multiple extensions to file further materials. These requests were granted administratively for a period of time. However, given the passage of time, the Tribunal directed that any further requests to extend would require the filing of a Request For Order During Proceeding ("Request"). The applicant filed such a Request which was denied in a Case Assessment Direction issued on October 26, 2017.

THE LAW

9Under 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.

10The 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.

11The 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.

12As 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

13I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

The Interim Decision

14The applicant argues that the Interim Decision is inconsistent with established jurisprudence because the Tribunal declined to consider that various anonymization and sealing Orders were made in the context of one or more of her related civil proceedings.

15The applicant argues that the failure to grant her requests for anonymity would defeat the purpose of the courts' orders. The fact that the court took a different view of the matter in a quite different context is not at all determinative. The question of the applicant's capacity was very much at issue and I understand that there were various assessments conducted in the context of her various court actions. I would also observe that beyond the contents of Tribunal Decisions there is a practical obscurity to our proceedings because unlike the courts tribunals, including this Tribunal are covered by privacy legislation. As such any material that the applicant may have filed is not available to the general public. I would also observe that there has been no significant disclosure of any "sensitive and personal medical" information about the applicant and given the result in these cases the potential of this being an issue in the future has been addressed.

16The applicant argues that the failure of the Tribunal to grant her request for anonymization prevented her from revealing her true condition at the material times in 2009. She then argues that because she did not disclose her true condition, the Tribunal had no information before it about her condition at the material times. This may be the case, but the fact that the Tribunal had no detailed understanding of the applicant's medical condition in 2009 is immaterial to the result in these cases. For purposes of the summary hearing, it was assumed that the applicant was a person with a disability at the material times.

17The applicant also has requested a sealing order. This is a new request. The applicant asserts that certain medical records of hers have been submitted and she is concerned that these might become available to the public. The request is denied for the reasons set out above.

The Decision

18The applicant makes a great number of submissions articulating her disagreement with the Decision; however, few, if any, of her submissions address the legal basis for my conclusions.

19The applicant disagrees that she agreed at the summary hearing that the Application 2011-09578-I should be dismissed as against the two law firms identified. This assertion does not accord with my recollection of events; however, it does not matter as this Application was also dismissed because it was outside of the Tribunal's jurisdiction to decide following the Tribunal's case law that there is no service relationship between an applicant and opposing counsel.

20On this point the applicant also indicates that she had identified a lawyer M.C. as a respondent in this same Application. That is not the case. M.C. is identified only as a contact person and has never been identified as a respondent. Other lawyers similarly referred to in the applicant's submissions were identified as contact persons and were not identified at any time as respondents in any of these Applications.

21The applicant makes a number of submissions about the meaning of services in addressing the determination of the Tribunal that there is no service relationship between counsel and parties opposite in litigation. These are arguments that were made, or could have been made at the summary hearing. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 ("Sigrist"), 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 submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

22The applicant takes issue with the conclusion that one of her civil actions against the respondent People's Trust (file 2011-09579-I) was filed before the Application was filed and one after. The applicant contends that they were both filed before that Application was filed. Assuming that this is correct it does not matter and does not affect the conclusion. In any case this Application was also dismissed because it was outside of the Tribunal's jurisdiction because there was no service relationship between the applicant and this respondent at the material times.

23The applicant complains that the Decision concludes that the Applications were filed beyond the one-year limitation period in section 34(1) of the Code. Although this was not a determining issue in all of these cases it was clearly an issue in at least one of them. In her Request the applicant makes a number of submissions about the Tribunal's jurisprudence on delay but it is not clear how these submissions relate to the conclusions in the Decision. In any event these were issues raised prior to the summary hearing and were addressed or should have been addressed fully at that time. For the reasons set out earlier a request for reconsideration is not an opportunity to re-argue a case.

24The applicant also argues that the Tribunal mis-apprehended what her Applications were about – for example she asserts that the Tribunal incorrectly described the allegations in 2011-09558-I. The allegation in that Application is as follows:

A.S. [a lawyer as I understand it] failed to accommodate my disability and advised to lock me out of my home and dispose of my personal and business property.

25It is not clear how this Application could be construed as raising any allegations as against the Law Society and that was the basis for the Decision. The applicant argued at length as indicated in the Decision and in this Request that all of these parties had an obligation to seek to have a Litigation Guardian appointed for her in her various civil proceedings, but this Application contains no such allegation. Moreover, the applicant's over-arching theory was dealt acknowledged and addressed in the Decision.

26The applicant makes a number of other arguments about what she characterises as incorrect conclusions about the nature of these Applications and certain of the legal facts surrounding them. The applicant argues that I made findings of facts which are inappropriate at this stage of the proceeding. However, the findings of facts that the applicant complains about are what I would call legal facts – so for example the applicant complains that I concluded that the applicant had withdrawn 2011-09558-I as against an individual respondent. While the applicant does not claim that she did not withdraw this Application, she relies on subsequent correspondence from the Registrar which indicates that although she had withdrawn the Application, "in light of all of the emails you have sent, it appears that the issue is still ongoing". It is not clear how this communication addressed the fact that the applicant had withdrawn the Application, but as a result of administrative error the withdrawal was not properly addressed. In any event, as indicated in the Decision, this was not the basis for my conclusions about this Application because as I indicated the applicant had not been put on notice prior to the summary hearing that this was an issue.

27The applicant also argued that I incorrectly concluded that civil claims filed against one of these respondents (2011-09579-I) were filed one before and one after this Application was filed. Whether or not the applicant is correct on this point does not affect the result. The applicant argued that her civil claims are not barred because of section 34(11) of the Code. It is not clear how this argument relates to the Decision. In any case, whether the civil claims were filed before or after or one before and one after is immaterial to the result.

28For the most part, the applicant's submissions merely reiterate, re-state and elaborate on her submissions made prior to and at the summary hearing. For the reasons set out above reconsideration is not an opportunity to re-argue a case. The applicant's disagreement with my conclusions does not meet the requirement of Rule 26.2 and is not a basis for reconsideration.

29For all of these reasons the Requests are denied..