Campbell v. Toronto District School Board, 2008 HRTO 423

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leslie Campbell by his Litigation Guardian Jacqueline Lewis-Campbell Complainant

-and-

Ontario Human Rights Commission Commission

-and-

Toronto District School Board Respondent

RECONSIDERATION DECISION

Adjudicator: Sherry Liang Date: December 23, 2008 Citation: 2008 HRTO 423 Indexed as: Campbell v. Toronto District School Board

WRITTEN SUBMISSIONS BY

Leslie Campbell, Complainant ) Jacqueline Lewis-Campbell, Litigation Guardian Ontario Human Rights Commission ) Sharon Ffolkes-Abrahams, Counsel Toronto District School Board, Respondent ) Brenda Bowlby, Counsel

INTRODUCTION

1On September 2, 2008, the Tribunal issued an interim decision in this complaint (Campbell v. Toronto District School Board, 2008 HRTO 62), dismissing portions of it that raised matters previously dealt with in a decision of the Special Education Tribunal (SET). The Ontario Human Rights Commission (the “Commission”) has asked the Tribunal to reconsider the interim decision. The complainant, through his litigation guardian, supports the Commission’s request for reconsideration.

BACKGROUND

2The Tribunal’s interim decision dismissed the following allegations or issues raised in the pleadings:

• That PECS (Picture Exchange Communication System) was not used throughout the complainant’s school day;
• That the Board failed to implement recommendations of the COTA (Comprehensive Rehabilitation and Mental Health Services);
• That the complainant was given no academic program or no adequate academic program;
• That the failure to provide augmentative communication hampered the complainant’s academic gains;
• That the complainant was never taught Grade 2,3,4,5 curriculum as his grade level expectation was pre-kindergarten;
• The complainant’s placement in a special education class instead of a regular classroom with his peers;
• The nature of the complainant’s exceptionalities.

3The Tribunal found that the circumstances before it justified the application of the “abuse of process” doctrine to preclude re-litigation of the above issues and facts, already dealt with by the SET. It stated that:

allowing the litigation to proceed on those matters would violate principles of judicial economy, consistency, finality and the integrity of the administration of justice. It would improperly place the Tribunal in the position of an appellate court with respect to the decision of an expert tribunal, acting within its jurisdiction as part of a comprehensive scheme for the accommodation of special education students.

4The Tribunal also considered the application of section 45.1 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”), as amended, which states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

5The Tribunal found that, for the same reasons supporting its finding on abuse of process, the SET appeal “appropriately dealt with the substance of the matters in dispute.”

THE REQUEST FOR RECONSIDERATION

6The Commission’s Request for Reconsideration, dated October 2, 2008, provides two reasons why the Tribunal should reconsider its interim decision:

a. the Tribunal incorrectly interpreted the jurisdiction of the SET; b. the Tribunal relied on the decision in Eaton v. Brant County Board of Education, 1997 CanLII 366 (S.C.C.), which is not relevant.

7The Toronto District School Board (the “Board”) provided a response to the Request. Among other things, the Board noted that the Commission did not address the threshold tests for reconsideration of a Tribunal decision. In any event, the Board submitted that none of the four criteria in the Tribunal’s Rules of Practice that would justify reconsideration exist in this case.

8The Commission’s reply to the Board’s submissions addressed the threshold criteria for reconsideration, submitting that the interim decision “is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.”

9The litigation guardian filed submissions supporting the Commission’s position.

DECISION

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 rules. The 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 amended June 2008). Most relevant to this decision are Rules 98 and 102 of the Tribunal’s Rules of Practice which state:

98. Any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision

99. 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; (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; (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 and orders.

11Under Rule 98, only “final” decisions qualify for a reconsideration request. In its decision in Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34, the Tribunal determined that even an interim decision may be “final” for the purpose of Rule 98 if it disposes of some or all of the central issues in the complaint. I am satisfied that the interim decision in the matter before me disposes of some of the central issues in the complaint and, on this basis, the Tribunal’s reconsideration process is available.

12However, I find that the Commission has not met the burden of establishing any of the threshold criteria justifying reconsideration.

13As indicated above, the Commission relies only on the criterion in Rule 102(c). It submits that the Tribunal incorrectly interpreted the jurisdiction of the SET, “which is in conflict with established jurisprudence that the Tribunal must be correct when interpreting jurisdictional issues.”

14To put this submission in context, the Commission’s position is that the SET did not have jurisdiction to make determinations on the matters listed in paragraph 2 above (with the exception of the placement decision). It is said that the Education Act, R.S.O. 1990, c. E.2 does not permit the SET to consider what programs and services are required to achieve appropriate accommodation of a student. The Commission does not dispute that the decision of the SET with respect to this complainant did make determinations about those matters listed in paragraph 2, but asserts that they “are not binding on the parties.” The Commission states that “[a]n interpretation broadening its own mandate by the SET or by the Human Rights Tribunal of Ontario (the “HRTO”) is ultra vires its enabling legislation.”

15In support of its Request, the Commission essentially repeats arguments made orally before the Tribunal, and refers to an additional decision of the SET, W.F. v. Ottawa Catholic School Board, File No. 2008-02. The litigation guardian’s submissions put forward her position that the Tribunal must provide oversight over special education services.

16I am not convinced that any findings made in the interim decision are in conflict with established jurisprudence, within the meaning of Rule 102(c). The only jurisprudence cited by the Commission on the threshold issue is the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, in which the Court states that “[a]dministrative bodies must also be correct in their determinations of true questions of jurisdiction or vires.” The Commission suggests that the Tribunal’s decision is in conflict with Dunsmuir because, it asserts, it was incorrect in interpreting the jurisdiction of the SET.

17Even if the threshold criterion in Rule 102(c) may apply beyond the Tribunal’s own jurisprudence, nothing in the interim decision conflicts with the principles in Dunsmuir. Unlike in Dunsmuir, the Tribunal is not a court engaging in a review of decisions of a tribunal, and deciding on the appropriate standard of review. Unlike in Dunsmuir, the issues before the Tribunal concerned the application of abuse of process principles and section 45.1 of the Code, and whether to give effect to findings made by the SET in a complaint under the Code. The Commission has referred to no established Tribunal jurisprudence which is said to conflict with its findings on these issues. Nor does the additional SET decision submitted by the Commission provide a basis for finding a conflict with established jurisprudence. Among other things, it arises out of a different context than the complainant’s.

18The Commission also submits that the Tribunal relied on an irrelevant decision (Eaton v. Brant County Board of Education), but fails to address how reliance on that decision conflicts with established Tribunal jurisprudence.

19It is important to note that the two issues raised by the Commission in this Request were the subject of submissions before the Tribunal, and dealt with in its interim decision. In Sigrist and Carson, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to a case 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 Commission’s submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

20The Tribunal also stated in Sigrist and Carson that a “conflict with established jurisprudence or procedure” within the meaning of Rule 102(c) 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 Commission clearly disagrees with the conclusions of the Tribunal, I am satisfied that its submissions on this Request do not establish that the Tribunal’s interim decision conflicts with established jurisprudence.

21Finally, while I acknowledge that the litigation guardian also disagrees with the interim decision, her submissions do not provide a basis for reconsideration.

22In sum, I find that the Commission has not established the existence of any of the criteria in Rule 102 that would lead to reconsideration of the Tribunal’s interim decision. The Request is denied.