S.T. v. Toronto District School Board, 2009 HRTO 1913

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.T. by her next friend, C.R.E.

Applicant

-and-

Toronto District School Board,

Deborah Clodman, Martha Tobe and Maria Powell

Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: November 9, 2009

Citation: 2009 HRTO 1913

Indexed as: S.T. v. Toronto District School Board

1This Decision addresses a request for reconsideration by the applicant’s next friend in relation to the Tribunal’s Case Resolution Conference Decision dismissing the Application, 2009 HRTO 1074.

2On August 5, 2009, the applicant filed a request for reconsideration under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).

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.

3Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s 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).

4The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

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.

5As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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.

6In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an Application 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.

7The Tribunal’s Rules of Procedure for Transitional Applications provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 of the Rules provides:

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.

8As a result, I need to determine whether the material filed by the applicant’s next friend in support of the request for reconsideration satisfies any of the criteria set out in Rule 26.5.

9With regard to Rule 26.5(a), and having carefully reviewed all of the material filed by the applicant’s next friend in support of the reconsideration request, there are no new facts or evidence provided that could potentially be determinative of the case. The applicant’s next friend essentially repeats evidence given by her and the applicant and considered fully in the Tribunal’s Decision. As indicated above, a request for reconsideration is not an opportunity to re-state or re-argue evidence already advanced and considered.

10The applicant’s next friend raises a number of issues regarding the procedure at the hearing. First, she alleges that counsel for the respondents handed me a “note” at the commencement of the hearing that was put into the file without being examined in front of her. In fact, counsel for the respondents re-submitted documents that already had been filed with the Tribunal and provided to the applicant’s next friend, but which were simply numbered. A numbered copy of these documents also was provided at the same time to the applicant’s next friend. These documents were put by me in the Tribunal’s file as they already had been marked as an exhibit to the proceeding.

11The applicant’s next friend also alleges that the applicant was only questioned by me in relation to one incident. This is not correct. In fact, the applicant was asked questions in relations to all of the issues raised in her complaint, as these issues had been clarified at the hearing.

12The applicant’s next friend alleges that the evidence of the respondent witnesses was fabricated. The evidence of these witnesses and the submissions made by the applicant’s next friend regarding this evidence were fully considered and addressed by me in my Decision. The request for reconsideration does not provide any new evidence or submissions that either weren’t already made or couldn’t have been made at the hearing.

13In support of her reconsideration request, the applicant’s next friend also has submitted material relating to the involvement of the police in an alleged death threat made by her against one of the parents at the school, whom she erroneously believed to be the source of the e-mail sent to the school which led to contact with the Children’s Aid Society. As I ruled at the hearing, the Application before me relates to allegations of discrimination against the applicant, and not to allegations about conduct directed towards the applicant’s next friend. Accordingly, I ruled that the matter of the police involvement was not relevant to the issues that I needed to determine.

14With regard to Rule 26.5(b), the applicant did receive notice of the hearing and through her next friend fully participated in the hearing process, including being afforded the ability to tender all relevant evidence, question opposing witnesses, and make final submissions.

15With regard to Rule 26.5(c), the applicant’s next friend has not raised any basis in her reconsideration request to indicate that any findings made in the Decision are in conflict with established jurisprudence. As stated by the Tribunal in Sigrist and Carson, supra, 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’s next friend clearly disagrees with the conclusions of the Tribunal, I am satisfied that her submissions on this request for reconsideration do not establish that the Tribunal’s Decision conflicts with established jurisprudence.

16Finally, with regard to Rule 26.5(d), there are no factors raised in the request for reconsideration that, in my opinion, outweigh the public interest in the finality of Tribunal decisions.

17Accordingly, I find the applicant’s next friend has not met the burden of establishing any of the threshold criteria justifying reconsideration. The request does not satisfy the requirements of Rule 26.5.

18The request for reconsideration is denied.