HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Donna Jenner
Applicant
-and-
Toronto Newsgirls Boxing Club and Savoy Howe
Respondents
Reconsideration DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Jenner v. Toronto Newsgirls Boxing Club
WRITTEN SUBMISSIONS BY
Donna Jenner, Applicant ) On Her Own Behalf
INTRODUCTION
1The applicant filed a Request for Reconsideration on August 17, 2009, which requests reconsideration of the Tribunal’s Decision, 2009 HRTO 1181, that dismissed her Application. The hearing took place on July 29 and the Decision was released on July 30.
2A respondent is not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal. In the circumstances of this Request, the Tribunal did not deem it necessary to seek submissions from the respondents.
DECISION UNDER RECONSIDERATION
3The Tribunal’s Decision dismissed the Application because the applicant failed to attend the hearing and provide evidence in support of the allegations raised in the Application. Paragraphs 11-14 of the Decision read:
[11] I commenced the hearing at 10:00 AM and invited submissions from the respondents’ representative on how I should deal with the applicant’s failure to appear at the hearing. The respondents’ representative requested that the Tribunal dismiss the Application on the basis that the applicant received notice of the hearing, but refused to attend.
[12] Subsection 43(2) of the Code and Rule 3.5 of the Tribunal’s Rules provide that an Application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions. Although the applicant was willing to waive her right in this regard, the respondents were not. In addition, it is clear from the parties’ pleadings that the merits of the Application could not be disposed of in writing even if the parties had waived their right to make oral submissions. There are important factual issues in dispute which require that witnesses testify under oath or affirmation, and be examined and cross-examined.
[13] Furthermore, the Tribunal clearly indicated to the applicant that it was willing to accommodate her disability-related needs at the hearing up to the point of undue hardship, and that if she was unable to attend an oral hearing at this time because of health issues, to submit a doctor’s/medical note prior to July 29, 2009. The applicant did not attend the hearing, did not request an adjournment of the hearing, and did not submit a doctor’s/medical note.
[14] The applicant commenced a legal proceeding when she filed her Application with the Tribunal. It is the applicant’s responsibility to attend the hearing and provide evidence in support of the allegations raised in the Application. In the absence of such evidence, the Tribunal is unable to proceed with the Application and there is no onus or responsibility on the respondents to provide evidence in response to allegations.
RELEVANT LAW, RULE AND PRACTICE DIRECTION
4Section 45.7(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), provides that any party to a proceeding before the Tribunal may request that the Tribunal reconsider a final decision in accordance with the Tribunal rules.
5Rule 26.5 of the Tribunal’s Rules of Procedure states that 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.
6The Tribunal has also issued a Practice Direction on Reconsideration to provide guidance to the community on the nature of the reconsideration process. The Practice Direction states, in part:
Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.
Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.
REQUEST FOR RECONSIDERATION
7In the Request for Reconsideration Form, the applicant submitted that the Tribunal’s Decision should be reconsidered in accordance with Rule 26.5 (c) because it is in conflict with a Tribunal policy and the proposed reconsideration involves a matter of public interest.
8In her reasons in support of her Request, she submitted that the Decision was in conflict with the Tribunal’s policy on hearings, which allows for alternative adjudicative procedures, including written and electronic hearings. Specifically, she stated that she informed the Tribunal that she was unable, not unwilling, to attend the in-person hearing due to financial constraints, but her request for a written hearing or an electronic hearing, through conference call or video call, was refused.
9The applicant also raised a new reason for not having attended the hearing. She stated that she did not attend the hearing, and should not have been expected to attend the hearing, because the respondents threatened her life.
10The applicant also stated that I, as the adjudicator, was biased because I refused her request, disclosed private information about her disability, her source of income and where she lives in the Decision, and invited submissions at the hearing from the respondents’ representative on how I should deal with the applicant’s failure to appear.
11The applicant further stated that the Tribunal’s Case Assessment Direction (“CAD”) dated July 23, 2009, which directed her to provide a doctor’s/medical note prior to the hearing date if she was unable to attend because of health issues, was unacceptable because only she will decide what is and what is not within her capacities.
12Finally, the applicant submitted that, for those reasons, the reconsideration of the Decision is a matter of “public interest”.
ANALYSIS AND DECISION
13In my view, the applicant has not established compelling and extraordinary circumstances for reconsideration of the Decision which outweigh the public interest in the finality of decisions.
Accommodation Request
14The Tribunal’s procedure for accommodating Code-related needs during the hearing process is set out in Rule 2.1 of the Tribunal’s Rules:
Parties, representatives and witnesses are entitled to accommodation of Code-related needs by the Tribunal and should notify the Registrar as soon as possible if accommodation is required. The provisions of these Rules will be interpreted and applied in a manner that is consistent with the Human Rights Code.
15Rule 3.5 also provides for different forms of proceeding:
The Tribunal may conduct hearings in person, in writing, by telephone, or by other electronic means, as it considers appropriate. However, no Application that is within the jurisdiction of the Tribunal will be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with these Rules.
16Section 41 of the Code also states:
[Part IV of the Code] and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it
17Accordingly, although the Tribunal initially schedules an in-person hearing, it will consider and, in appropriate circumstances, grant requests for alternative adjudicative procedures, such as a written or an electronic hearing, in order to accommodate the Code-related needs of a party, representative or witness.
18For the purposes of this Decision, I am assuming but not deciding that the accommodation principles in human rights law apply to the adjudicative procedures of administrative tribunals. Under the law, it is well-established that the accommodation process is a shared responsibility. Accordingly, the Tribunal has a duty to accommodate the applicant’s Code-related needs to the point of undue hardship, but the applicant also has a duty to cooperate in the accommodation process and accept reasonable accommodation: see, for example, Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970.
19In my view, the applicant requested accommodation of her Code-related needs in the Tribunal’s adjudication process, but did not cooperate in the Tribunal’s process for accommodating her request. Specifically, she provided shifting reasons why she would not attend the hearing, her requests for accommodation were not submitted in a timely manner, she refused to provide a doctor’s/medical note to support her request, and she directed the Tribunal not to communicate with her during the accommodation process.
20The applicant submitted that the Tribunal should have granted her request for a written or an electronic hearing because she informed the Tribunal that she was unable to attend the in-person hearing due to financial constraints. This is an incomplete account of the applicant’s communications with the Tribunal prior to the hearing.
21The Tribunal sent the parties a Confirmation of Hearing notice by regular mail on May 7, 2009. Between July 13 and 16, 2009, the applicant provided multiple reasons, as set out in paragraph 4 of the Decision, why she would not attend the hearing. In those e-mails, she only requested accommodation for her disability-related needs, and indicated that she was unwilling, not unable, to attend the hearing because of financial constraints and other reasons. She did not provide any explanation as to why she waited less than three weeks before the hearing to make her accommodation request.
22The Tribunal issued its CAD on July 23, 2009, which offered to accommodate the applicant’s needs at the hearing, and directed her to provide a doctor’s/medical note prior to July 29 if she was unable to attend the hearing on that date for health reasons. In other words, the Tribunal was willing to either accommodate the applicant’s needs at the in-person hearing, or adjourn the hearing and consider other forms of accommodation, if the applicant submitted a doctor’s/medical note in a timely manner.
23In response, the applicant sent the Tribunal several e-mails on July 23 and 24, 2009, in which she refused to provide a doctor’s/medical note, and only then stated that she was unable to attend the hearing because of financial constraints. She also requested a written or an electronic hearing. She did not provide any explanation as why her position had changed from being unwilling to being unable to attend the hearing because of financial constraints, or why she waited until five days before the hearing to make this accommodation request. In addition, notwithstanding her outstanding accommodation request, she directed the Tribunal not to contact her again until the Tribunal decided the case. Her position was simply that the Tribunal should decide the case without further communication with her, on the basis of the written materials filed.
24It is also important to note that, after the Decision was released, the applicant raised a new reason why she did not attend the hearing: the respondents threatened her life. She did not submit any supporting evidence to substantiate this allegation, and did not offer any explanation as to why she did not raise it prior to the hearing.
25The applicant also sent e-mails to the respondents on August 3 and 14, 2009, which requested that she be allowed to return to the Toronto Newsgirls Boxing Club and train with them. The e-mails contradict her statements that she is unable to come to Toronto because of financial constraints, and she did not attend the hearing because the respondents threatened her life.
26The Tribunal has a duty to be accessible and dispose of applications fairly, justly and expeditiously: see section 40 of the Code and Rule 1.1 of the Tribunal’s Rules. This duty is not only in relation to applicants, but also in relation to respondents and the public. In Ouwroulis v. New Locomotion, 2009 HRTO 335, the Tribunal stated at paras. 4-7:
[4] Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.
[5] When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.
[6] Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.
[7] The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.
27Finally, even if the applicant had made a timely request for a written or an electronic hearing, which was supported by consistent and sufficient information, it does not follow that the Tribunal would have granted such a request. There will always be a range of interests to consider. For example, in the present case, there were fundamental factual disputes and credibility issues which were at the heart of the matter. In such cases, the Tribunal must ensure that the adjudicative process provides procedural fairness to all the parties. Undue hardship in this context is not simply an issue of cost to the Tribunal or other parties, it may also incorporate issues of fairness in the decision-making process.
28In all the circumstances, it is my view that it would neither be fair, just and expeditious nor in the public interest to reconsider my Decision to dismiss the Application.
Bias
29The legal principles related to reasonable apprehension of bias were set out by De Grandpré J. in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at p. 394:
. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
30In my view, a reasonable, right minded and informed person, viewing the matter realistically and practically, and having thought the matter through, would not conclude that my CAD and Decision raise a reasonable apprehension of bias.
31The fact that I did not hold a written or an electronic hearing does not raise a reasonable apprehension of bias. In accordance with the Rule 2.1 of the Tribunal’s Rules, the CAD clearly indicated that the Tribunal would accommodate the applicant’s disability-related needs at the in-person hearing up the point of undue hardship, or adjourn the hearing provided that the applicant submitted a doctor’s/medical note prior to the hearing date. Furthermore, the Decision explained why an oral hearing with examination and cross-examination was necessary.
32Similarly, the applicant’s allegation that I violated her right to privacy by disclosing her disability, her source of income and where she lives in the Decision does not raise a reasonable apprehension of bias. The following sentence appears above her signature on page 12 of her Application: “I understand that information about my Application can become public at a hearing, in a written decision, or in other ways determined by Tribunal policies.” The applicant also did not make a request for an order prior to the hearing to protect the confidentiality of personal or sensitive information. Furthermore, notwithstanding the detailed information that the applicant provided to the Tribunal, the Decision did not disclose what her specific disability is, what her specific source of income is, or her address.
33Finally, the fact that I invited submissions from the respondents’ representative on how I should deal with the applicant’s failure to appear at the hearing does not raise a reasonable apprehension of bias. The respondents had a right to make submissions and to have me consider them.
Request to Amend the Decision
34The obligation on administrative decision-makers to provide written reasons for their decisions in certain circumstances was set out by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at para. 43:
The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required.
35Rule 3 of the Tribunal’s Rules of Procedure also provides for open justice, subject to limited exceptions:
3.10 The Tribunal’s hearings are open to the public, except when the Tribunal determines otherwise.
3.11 The Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.
3.12 All written decisions of the Tribunal are available to the public.
36In her submissions and several e-mails sent to the Tribunal since the Decision, the applicant submitted that the Tribunal violated her privacy rights and should delete references in the Decision to the type of disability she has, her source of income, and her location. She stated that the information about her disability and source of income is stigmatizing, and the information about her location should not have been published because she is a survivor of crime.
37As a general matter, I am very reluctant to re-edit a final Decision, particularly where the requesting party could have, but did not, make a request for an order to protect the confidentiality of personal or sensitive information prior to the Decision being issued. In addition, this information was referenced throughout her Application and in her e-mails to the Tribunal, which suggested to me that she considered it relevant to her case.
38I also believe that the information was necessary to meaningfully explain the reasoning in the Decision. The applicant requested accommodation in the adjudication process based on her specific disability, her specific type of income, and the fact that she now lives in Windsor, not Toronto. In my view, deleting the information from the Decision would affect the clarity of the reasoning.
39The applicant has also indicated that she may appeal the Tribunal’s Decision. Although there is no right of appeal under the Code, the applicant has a right to apply for judicial review of the Decision. In her judicial review application, the applicant will presumably raise these issues. As such, I believe that it is important that the reviewing court have the original Decision before it.
40The applicant’s request to amend the Decision is therefore denied.
ORDER
41The Request for Reconsideration is dismissed.
Dated at Toronto, this 4th day of September, 2009.
“Signed by”
Ken Bhattacharjee
Vice-chair