Sweezey v. Ontario (Attorney General), 2010 HRTO 160

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stacy Sweezey

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General, The Office of the Children’s Lawyer,

John Harding and Lousanne Rode

Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: January 25, 2010

Citation: 2010 HRTO 160

Indexed as: Sweezey v. Ontario (Attorney General)

1This Decision addresses a request for reconsideration by the applicant in relation to the Tribunal’s Decision dated August 21, 2009 dismissing the Application on the basis that it is not within the Tribunal’s jurisdiction, 2009 HRTO 1296.

2On August 27, 2009, the applicant filed a Request for reconsideration of the Tribunal’s Decision.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) provides as follows:

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.

4Under 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).

5The 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.

6As 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.

7In 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.

8The 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 25.5 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.

9As a result, I need to determine whether the material filed by the applicant in support of his request for reconsideration satisfies any of the criteria set out in Rule 25.5. In the instant case, the applicant relies upon Rule 25.5(a).

10The applicant does not in fact provide any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. Rather, the applicant in his Reconsideration Application attempts to re-argue his case and make further submissions in support of his position. These are arguments and submissions, not new facts or evidence. As a result, there is no basis to support the granting of the applicant’s request pursuant to Rule 25.5(a).

11Before leaving this Decision, I wish to address two matters raised by the applicant in his submissions. The applicant states that he originally filed his complaint with the Commission on the grounds of sex and family status, but that the Commission subsequently removed the ground of family status in the complaint as issued. The applicant submits that the ground of family status should be considered in the context of his Application in order to recognize that “a single father and child family is equally acceptable as a single mother and child family”. I note that the distinction here continues to be on the basis of the ground of sex, namely a single father as opposed to a single mother, rather than on the basis of family status. In any event, the re-inclusion of this ground still does not resolve the principal problem as addressed in my prior Decision that the applicant was not the person receiving the service from the respondents.

12The second request by the applicant is to amend his complaint so that his 7-year-old son can be the named applicant with the applicant himself acting as litigation guardian, which the applicant describes as a “technicality”. This is far from a technicality. Pursuant to s. 53(5) of the Code, a complainant who had filed a complaint with the Commission under the old system was entitled to abandon that complaint and file an application with the Tribunal. But the application can only be made by “the complainant . . . with respect to the subject-matter of the complaint”. The “complainant” in the complaint filed with the Commission is the applicant, Stacy Sweezey, and he is the person who filed this Application under s. 53(5). The applicant’s son, Liam Sweezey, is a separate person who was not a complainant and who did not and could not file an application under s. 53(5). As a result, there is no basis upon which the Tribunal can entertain this request by the applicant.

13The Request for reconsideration is denied.