Derek Bertrand v. The Regional Municipality of Peel Police Services Board, 2010 HRTO 1567

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Derek Bertrand Applicant

-and-

The Regional Municipality of Peel Police Services Board and Michael Cook Respondents

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta Date: July 20, 2010 Citation: 2010 HRTO 1567 Indexed as: Bertrand v. Peel Police Services Board

Introduction

1Derek Bertrand filed a human rights Application on September 3, 2009, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code”) alleging discrimination by the respondents in receipt of goods, services or facilities because of colour and sex. The applicant identifies as a black man and, in his Application, he alleged that he was approached, questioned, detained and assaulted by the respondents because of his colour and sex.

2On January 25, 2010, the Tribunal issued a Decision, 2010 HRTO 149, dismissing this Application on the ground that it was barred by virtue of section 34(11) of the Code. The Tribunal held that the subject matter of the Application was substantially the same as matters put before the court by the applicant in a civil claim. That claim was dismissed following consideration of human rights principles by the court.

3The applicant filed a Request for Reconsideration on February 24, 2010. On March 4, 2010, the respondents acknowledged having been served with a copy of the Request for Reconsideration and indicated that they would provide submissions if called on to do so by the Tribunal. The Tribunal has not sought further submissions from the respondents.

4The applicant argues that reconsideration is warranted in this case on two grounds: that the Decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance and that other factors exist that would outweigh the public interest in the finality of Tribunal decisions.

5This is the Tribunal’s Decision on the Request for Reconsideration.

Request for Reconsideration

6Section 45.7 of the Code provides the Tribunal with explicit authority to reconsider its decisions:

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.

7Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration 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).

8Most relevant to this decision is Rule 26 which reads, in part, as follows:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision.

26.5 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 and orders.

9The 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.

10As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen 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.

11The applicant has based his request on Rule 26.5 (c) and (d).

12He argues that the Tribunal has misapplied the Code by finding that his matter was dealt with by the court because he characterized the civil claim as a matter of discrimination on the basis of race and the Application to the Tribunal alleged discrimination on the basis of colour and sex.

13The applicant appears to be arguing that the Tribunal should continue to deal with his Application because his alternate characterization of the type of discrimination he suffered engages issues of intersectional discrimination that the court and Tribunal did not address. He suggests that the Tribunal should reconsider its decision to dismiss the Application as it has failed to consider relevant policies of the Ontario Human Rights Commission.

14Having considered the applicant’s argument, my view is that these arguments were made and considered in the first instance and the Decision is not inconsistent with established jurisprudence or the Commission’s policies and guidelines. Although the applicant chose to characterize the grounds of discrimination differently in two different fora, there is no dispute that the conduct being characterized as discriminatory in both instances is the same, namely the interaction between the applicant and the respondents on September 5, 2008.

15The applicant goes on to argue that the Decision is in conflict with the Tribunal’s decision in Baker v. Sears Canada Inc., 2009 HRTO 1014, and provides the following quote in support of his proposition although both proceedings are based on the same factual situation, there is no duplication of legal issues:

While it is true that both the Claim and the Application rest on a similar factual bedrock, arise from the same sequence of events and present related issues, similarity or overlap in the facts does not amount to duplication of legal issues.

16The applicant appears to have quoted selectively from the Decision in question. In that case, the Tribunal held as follows:

Having reviewed the Application and the Statement of Claim, I find that the applicant has not triggered section 34(11) because she has not raised the Code in her civil action. While it is true that both the Claim and the Application rest on a similar factual bedrock, arise from the same sequence of events and present related issues, similarity or overlap in the facts does not amount to duplication of legal issues. In the Claim, the applicant does not cite or mention the Code, she refrains from alleging discrimination and, indeed, does not even plead the fact of her disability, which would be fatal to any putative claim for discrimination damages in any event.

17The circumstances of this Application are distinguishable from those in Baker in that a central feature of the applicant’s civil claim was an allegation that the applicant had been discriminated against and treated in a manner contrary to the Code, an argument that was heard and addressed by the court.

18The applicant restates his argument that the trial judge in his civil matter did not fully appreciate or address the Code issues although she referred to relevant Tribunal case law involving discrimination on the basis of race in policing.

19The Tribunal does not sit in appeal of decisions of the court. If the applicant is of the view that the court in deciding his civil matter misinterpreted or misapplied the law, this is not the appropriate forum for him to seek redress.

20Finally, in support of his contention that other factors exist that outweigh the public interest in the finality of Tribunal decisions, the applicant states that he intends to conduct an “aggressive marketing strategy” about what information police can ask for that he believes will result in “more black men being discriminated against” by the respondents. He suggests that the Tribunal should hear his Application in order to avoid this from happening.

21I am not persuaded that refusing the applicant’s request to reconsider the Decision dismissing his case will lead inevitably to the situation he describes and, therefore, cannot conclude that it is in the public interest as he asserts that the Tribunal continue to deal with his Application

22In view of the above, I find no basis to grant reconsideration of the Tribunal’s Decision of January 25, 2010.

23The Request is denied.