Jeremiah McCann v. City of Toronto (Paramedic Services), 2017 HRTO 1538

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeremiah McCann

Applicant

-and-

City of Toronto (Paramedic Services)

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: November 22, 2017

Citation: 2017 HRTO 1538

Indexed as: McCann v. Toronto (City)

WRITTEN SUBMISSIONS

Jeremiah McCann, Applicant

Self-represented

Introduction

1On July 19, 2017, the Tribunal issued its Decision in this Application, 2017 HRTO 903, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

2In the Decision the Application was dismissed because it was filed beyond the one year time period provided for in section 34(1) of the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"). Given that result the Tribunal did not go on to consider whether or not the Application should be dismissed because it had no reasonable prospect of success.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration provides a number of reasons why the Decision should be reconsidered. Much of the applicant's submissions are an attempt to re-argue the case. To the extent that they can be fit within the four corners of the Tribunal's Rules the applicant asserts that the decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general matter of public importance;

4The respondent was not called upon to respond to the applicant's Request.

THE LAW

5Under 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.

6The 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.

7The 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.

8As 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

9I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

10It is important to note that the issues raised in this Request were the subject of submissions before the Tribunal, and dealt with in its Decision. 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.

11As indicated the applicant's submissions are to a significant degree mere re-statements of submissions that were made at or prior to the summary hearing in writing. The applicant evidently disagrees with the conclusions reached but that is not a proper basis for reconsideration.

12The applicant argues that I did not deal with the entire scope of the allegations he has made. However given that the basis for the determination was that the Application was filed beyond the one year time limit; these submissions are not material to the Request.

13The applicant also argued that the Decision is in conflict with an earlier Decision of the Tribunal in Brown v. Bellissimo Pizzaria and Restorante, 2014 HRTO 1403 ("Brown"). I do not agree. The Tribunal also stated in Sigrist that a "conflict with established jurisprudence or procedure" requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. While the applicant clearly disagrees with the conclusions of the Tribunal, I am satisfied that the applicant's submissions on this Request do not establish that the Tribunal's Decision conflicts with established jurisprudence.

14In Brown, above, the Tribunal exercised its discretion to waive its Rule which provides that a document received after 5:00 p.m. is deemed to have been received the following day.

15In my view Brown is distinguishable and in any event one decision in which the Tribunal exercised its discretion in a certain manner does not meet the test of "a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules." I would also observe that this proposed reconsideration does not raise a matter of general and public importance. I would also note that the applicant provided little explanation for the delay that was incurred beyond a vague assertion of computer trouble. The thrust of the applicant's explanation was an attempt to establish that he had filed the Application on May 20, 2016 and not May 26, 2017 as erroneously indicated by the Tribunal in its initial Notice of Application. Finally I note that when considering delay issues the Tribunal must be mindful of the fact that the limitation period is a lengthy one. The applicant offered no explanation for why he waited until the final day to file this Application.

16The applicant also takes issue with my determination that his proposed amendments were themselves out of time and relies on Tribunal decisions which suggest that section 34(1) does not apply in considering the granting of amendments. Again the applicant's evident disagreement with the result is not a proper basis for reconsideration. To the extent that this is a submission that the Decision is inconsistent with Tribunal jurisprudence on this point it is denied for the reasons set out earlier on this point.

17For these reasons the Request for Reconsideration is dismissed.