Christianson v. Ontario (Information and Privacy Commissioner), 2009 HRTO 424

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Christianson

Applicant

-and-

Information and Privacy Commissioner/Ontario

Respondent

RECONSIDERATION DECISION

Adjudicator: Faisal Bhabha

Date: April 14, 2009

Citation: 2009 HRTO 424

Indexed as: Christianson v. Ontario (Information and Privacy Commissioner)

INTRODUCTION

1On February 26, 2009, the Tribunal issued a Decision dealing with the applicant’s Request for Interim Remedy removing counsel for the respondent due to an alleged conflict of interest, and with the respondent’s request for a ruling that the Tribunal lacks the jurisdiction to deal with the Application. In that Decision, the Tribunal found that the substance of the Application is beyond the Tribunal’s jurisdiction and therefore dismissed the Application. As a result, it was unnecessary to rule on the applicant’s interim request.

2On March 3, 2009, the applicant filed a Request for Reconsideration (Form 20) and brief submissions in support of his Request for Reconsideration. A 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 respondent.

REQUEST FOR RECONSIDERATION

3Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, 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.

4It is also useful to consider the Tribunal’s Practice Direction on Reconsideration, which 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.

5The applicant has raised a number of objections to the Decision. In his Form 20, he checked the boxes representing factors (a) new facts or evidence; and (c) established case law. I will consider his arguments in the context of Rule 26.5.

6First, the applicant advances several criticisms of the decision on the merits. He argues that it is “absurd” and “vague”. He restates his argument that the question of whether respondent’s counsel is in a conflict of interest must be dealt with prior to the jurisdictional question. He also restates his argument that the Tribunal does indeed have jurisdiction to review allegedly discriminatory decisions of the Information and Privacy Commissioner (“IPC”). No additional facts or evidence are provided to substantiate any of these claims, as required by Rule 26.5 (a). Instead, the applicant relies on facts and information that the Tribunal has already fully canvassed and weighed.

7Secondly, the Request fails to establish that the Decision is in conflict with established jurisprudence and involves a matter of general or public importance, as contemplated by Rule 26.5 (c). The applicant refers to a recent decision of the Canadian Human Rights Tribunal in Dawson v. Canada Post Corporation, 2008 CHRT 41, but provides no explanation or argument about how that decision should direct the Tribunal’s approach in this case. I do not find the decision in Dawson to be helpful, nor does it represent established jurisprudence with which the Decision in this case is in conflict.

8Reconsideration is not an opportunity to re-argue a case: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34. Once the parties to a case have had the opportunity to make submissions 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 applicant’s submissions in this Request amount principally to a repetition of argument previously made to the Tribunal.

9I have determined that the factors at Rule 26.5 (a) and (c) are not present. I have also reviewed the applicant’s additional claims that recourse to judicial review can only address the correctness of the IPC decision, and not what the applicant characterizes as discriminatory decision-making. As the substance of this Application addresses only the IPC’s adjudicative decisions, which are beyond the jurisdiction of the Tribunal, I have determined that the applicant has not raised other factors that outweigh the public interest in the finality of the Tribunal’s Decision and justify reconsidering it, pursuant to Rule 26.5 (d).

APPREHENSION OF BIAS

10The applicant alleges that the Decision is “completely unfair and probably biased”. In separate correspondence to the parties and to the Tribunal, the applicant alleges bias underlying both the decision not to order the removal of counsel for the respondent as well as the jurisdictional finding. He states: “Had Mr. Anand and his submissions been thrown out, there would be nobody to make the case for lack of jurisdiction, except for Mr. Bhabha who is really counsel for the respondents and not an adjudicator.” In supplementary submissions, filed on March 21, 2009, the applicant makes the following additional allegation regarding bias:

…it appears that the adjudicator is the “Babar” of the Tribunal, agreeing with the “Raj” or king of the tribunal where the applicant, who is not part of any royal caste, is ignored as an untouchable. Please see definitions of Raj and Babar and caste.

When the names of the adjudicator and chair of the Human Rights Legal Support Center [sic] are derived from a discriminatory caste system, there appears to be an acceptance and propagation of discrimination where the applicant who is underprivileged and complaining about discrimination is ignored by the Babar and Raj who, according to the caste system, only acknowledge themselves and ignore those below their caste.

11In Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at 394, De Grandpré J. provided a useful description of the reasonable apprehension of bias. He wrote:

...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.”

12The applicant’s claims with respect to bias are not supported by any facts or evidence. He filed with the Tribunal voluminous supplementary material, including the Report of the Commission of Inquiry into the Wrongful Conviction of David Milgaard (2008) and the federal Department of Justice’s Report on the Prevention of Miscarriages of Justice (2004), neither of which was helpful in deciding any of the issues before me.

13While an allegation of compromised impartiality must be accorded serious consideration, a completely unfounded allegation cannot be considered reasonable, especially when it is grounded in ethnic stereotyping. The applicant makes assumptions based on respondent counsel’s given name and the Vice-chair’s surname to assert collusion, unfairness and bias. I find it impossible that reasonable and right-minded persons viewing the matter realistically and practically would find even a kernel of plausibility in the applicant’s allegations.

14In conclusion, the request for reconsideration is denied.

15Finally, the Tribunal is also in receipt of a Request for Order During Proceedings, filed by the applicant following the issue of the Tribunal’s final decision. In the light of my decision to not grant reconsideration, it is clear that the Tribunal has no continuing jurisdiction to consider the applicant’s Request for Order During Proceedings.