Ontario Human Rights Commission v. Universal Workers Union, Liuna Local 183, 2006 HRTO 8

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission Commission

-and-

Anthony Tubbs Complainant

-and-

Universal Workers Union, Liuna Local 183, Daniel Avero, Roger Quinn and Tony Dioniso Respondents

INTERIM DECISION

Adjudicator: Mary Ross Hendriks Date: April 21, 2006 Citation: 2006 HRTO 8

Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca

INTRODUCTION

1This Interim Decision is in response to a request brought by the Respondents by way of letters dated March 27 and 29, 2006, seeking a Reconsideration of the Interim Decision of March 10, 2006, 2006 HRTO 3. Written submissions were filed by counsel for the Complainant and by counsel for the Commission in response on April 13, 2006. Counsel for the Respondents sent a further submission in reply on April 17, 2006.

BACKGROUND

2The Respondents brought a motion for the production of the entire contents of a different, closed file at the Ontario Human Rights Commission (the “Commission”), relating to a complaint that Mr. Tubbs made against a contractor and a personal respondent, who are not parties to this matter. The Respondents asserted that the other file met the test of arguable relevance given the broad nature of the allegations that Mr. Tubbs has made against the Respondents.

3The Tribunal considered two issues in the Interim Decision:

(1) Whether the Tribunal has the jurisdiction to order production of a file that the Commission has already decided not to refer to the Tribunal and has closed

(2) Whether that other file in question is arguably relevant to the matters in issue herein

4After considering the evidence and the submissions of counsel for the Respondents and counsel for the Commission, counsel for the Complainant not taking any position, the Tribunal reserved and rendered its Interim Decision.

5The Tribunal determined that, as a matter of law, it does not have the jurisdiction to order the other unreferred file produced, and since it lacks that fundamental jurisdiction, it also declined the Respondents’ alternative request to inspect it in its entirety to determine if any of the documents within it would have met the test of arguable relevance.

REQUEST FOR RECONSIDERATION

6Counsel for the Respondents respectfully submitted that the Tribunal “possesses the jurisdiction to vary or rescind its interim procedural decision precisely because that decision was ‘interim’ and ‘procedural’ and was not a ‘final’ decision made on the ‘merits’.” He submitted that the Tribunal has the power to make further interim procedural decisions, even if they have the effect of reversing earlier interim, procedural decisions. He argued that as long as a tribunal is not functus officio, it retains the jurisdiction to vary or reconsider its decisions. He relied on R. v. Adams, 1995 CanLII 56 (SCC), [1995] 4 S.C.R. 707 (S.C.C.) at paragraph 29, and a leading text by Brown and Evans, Judicial Review of Administrative Action in Canada, at paragraph 12.6222 to support his submissions.

7In terms of the merits of the request, in his letter of March 27, 2006, counsel for the Respondents set out a number of reasons why he believes the Tribunal reached an incorrect conclusion. He stated the following:

It is respectfully submitted that the Tribunal’s ruling is in error and amounts to wrongful denial of jurisdiction. The Tribunal has confused its lack of jurisdiction to inquire into a complaint that has not been referred to it, on the one hand, with its clear jurisdiction, on the other hand, to order a party in the proceeding before it to disclose and produce arguably relevant material in that party’s possession to other parties in the proceeding.

8Counsel for the Commission submitted that the Tribunal has no inherent power to reconsider its own decisions, but stated that there are exceptions. It stated that the jurisdiction of the Tribunal to “reopen or reconsider its Interim Decision must be set on a foundation of an inadvertent error, or a clerical error, or a procedural defect, or a denial of natural justice which vitiated the entire proceeding and so taints the process that the decision is a nullity.” He referred to Ridge v. Baldwin, [1963] 2 All E.R. 66 (H.L.) and to Gill v. Canada (M.E.I.) 1987 CanLII 9012 (FCA), [1987] 2 F.C. 425 to support his contentions. He submitted that if the Respondents believe that the Interim Decision contains an error of law, then the appropriate avenue of relief is by way of judicial review.

9Counsel for the Complainant submitted that the Tribunal would have the power to reconsider its interim decisions as per sections 16.1, 21.2 and 25 of the Statutory Powers Procedure Act, R.S.O. 1990, c.S. 22 (“SPPA”) but that the jurisdiction to do so would have to rest within the particular tribunal’s own rules. He maintained that since the Human Rights Tribunal’s Rules of Practice, July 2004 do not specifically provide a reconsideration power, it lacks the jurisdiction to do so.

ISSUES

10The Tribunal considered the following issues:

(1) Does the Tribunal have, as a matter of law, the jurisdiction to re-open this matter?

(2) If such jurisdiction exists, is this an appropriate matter on which to exercise such discretion?

(3) If it is appropriate, what should the outcome of the substantive reconsideration be?

DECISION

11Assuming, without deciding, that the Tribunal may have the common law jurisdiction to reconsider an Interim Decision, and even if it chose to apply the broadest standard and re-open all matters determined therein, the decision whether or not to reconsider remains discretionary. The Respondents have not made any assertions that would justify the exercise of this discretion based on the common law. The request is denied.

ANALYSIS

12There is no express power contained in the Human Rights Code, R.S.O. 1990, c.H.19 (the “Code”), that provides the Tribunal with the power to reconsider its decisions.

13Where legislation provides no such express power, McCauley and Sprague in Practice and Procedure before Administrative Tribunals, Carswell (looseleaf), at paragraph 27A.4 sets out four general grounds under which a decision-maker may have valid authority to reconsider his or her decision. These are summarized below:

a) implied legislative authority

b) clerical error, accidental slip or omission, or ambiguity in the decision

c) when a decision is not yet made, is void or voidable for lack of jurisdiction (including breaches of the principles of natural justice or fairness) or an issue remains outstanding

d) fraud and other circumstances undermining its authority

14The Tribunal has carefully reviewed its Interim Decision and finds that none of these common law criteria are met in this instance. If the Tribunal were of the view that it had erred or been ambiguous, made a clerical error, needed to hear some new key evidence not previously available as a matter of natural justice and fairness; if it made an error that rendered the Interim Decision a nullity, or had made some other obvious mistake, then if it found that it had the common law jurisdiction to reconsider its decision, it would have afforded itself of this discretion. The Interim Decision is not a final one, a flexible and pragmatic approach to justice is to be desired, and the Tribunal is not functus officio. See: R. v. Adams, supra, at paragraphs 27-30, and Vatanabadi v. Canada (Minister of Employment and Immigration) 1993 CanLII 2954 (FCA), [1993] 2 F.C. 492 (F.C.C.A).

ORDER

15The Tribunal orders that the request for reconsideration is hereby dismissed.