Ouji v. APLUS Institute, 2010 HRTO 1926

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shirin Ouji

Applicant

-and-

APLUS Institute

Respondent

RECONSIDERATION DECISION

Adjudicator: John Manwaring

Date: September 22, 2010

Citation: 2010 HRTO 1926

Indexed as: Ouji v. APLUS Institute

Written submissions BY

APLUS Institute, Respondent ) Self-Represented

1On June 21, 2010, the Tribunal issued a Decision, 2010 HRTO 1389, in which it held that the respondent violated the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) because it discriminated against the applicant when it failed to accommodate the applicant’s disability. The Tribunal also held that the respondent did not discriminate against the applicant when it refused to readmit the applicant to the Dental Hygiene Program in December 2006.

2On June 29, 2010, the respondent filed a Request for Reconsideration of this decision as provided for in section 45.7 of the Code, and in accordance with Rule 25 of the Tribunal’s Rules of Procedure for Transitional Applications which states:

25.5 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.

As the Tribunal states in its Practice Direction on Reconsideration:

Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO 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.

The issue which must be decided is whether there are compelling and extraordinary circumstances which justify reconsideration and outweigh the public interest in the finality of the decision already issued. See Sigrist & Carson v. London District Catholic School Board, 2008 HRTO 34.

3The respondent bases its Request for Reconsideration on subsections c) and d) of Rule 25.5. In its submissions accompanying the Request, the respondent advances two arguments. First, it argues that the Tribunal expanded the subject matter of the complaint which dealt solely with discrimination in handling the applicant’s application for readmission into the Dental Hygiene Program in December 2006. The Tribunal held that there was no discrimination during the readmission application process. Instead, its decision was that there was discrimination because the respondent breached its duty to accommodate while the applicant was enrolled as a student in the Dental Hygiene Program from April to October 2004. Second, the respondent argued that the order requiring the preparation of an accommodation policy is irrelevant because APLUS Institute already has an accommodation policy which was presented into evidence during the hearing.

4The mere fact that a party disagrees with a decision is not grounds for reconsideration. The respondent does not argue that that the decision is in conflict with established jurisprudence or that the proposed reconsideration involves a matter of general or public importance. Nor does the respondent identify the factors which outweigh the public interest in the finality of Tribunal decisions. The core of its argument is that the Tribunal expanded the subject matter of the complaint.

5As is stated in Rule 12.3 of the Rules of Procedure for Transitional Applications, “section 53(5) applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission.” In 2009 the applicant filed a Request to amend the Application but this request was denied by the Tribunal. See 2009 HRTO 1286.

6The case law dealing with requests to amend an Application interprets Rule 12.3 strictly. As the Tribunal states in Khaiter v. York University, 2009 HRTO 1489 at par. 15,

a section 53(5) application will be limited to the subject matter of the complaint made to the Commission and the Tribunal will only exercise its discretion to allow amendments where it is necessary to ensure to the fair, just and expeditious disposition of the application.

See also DeFreitas v. Ontario Public Services Union, 2010 HRTO 281.

7Given that the Rules of Procedure and the jurisprudence establish that the application before the Tribunal will normally be limited to the subject matter of the complaint made to the Commission, it is necessary to examine the Application in this case to determine if the Tribunal in its decision expanded the complaint.

8The Application was written by the applicant without the benefit of legal counsel. It is not written with the precision and clarity that one would expect from trained legal counsel. This is not unusual when the applicant is a layperson whose first language is neither English nor French. However, it is clear from the language used that the applicant alleges that she did not receive the help necessary to her academic success while enrolled in the Dental Hygiene Program and that she was refused readmission to the Program in violation of the Code. She states in her Application that

I registered in Dental Hygiene Program at APLUS Institute on March 15, 2004. During the classes I started some difficulty which I mentioned to instructors, but I did not receive help.

I was accepted for the beiging (sic) second semester, during the second semester I asked a meeting Ms. Jesin who told me I can (cannot??) continued (sic) in the Program. On November 29, 2006 I contacted APLUS Institute to obtain an application for readmission, I was told by Ms. Jesin I was not eligible to reapply solely because of health problems, however my family physician and rheumatologist told Ms. Jesin that their (sic) was no medical reason that I could not continued (sic) the Program.

9This language clearly states that the applicant is alleging that the respondent has discriminated against her on the grounds of disability while she was a student because the respondent did not provide her with the help she needed. While the applicant does not explicitly mention the duty to accommodate the language used is sufficient to identify this basis for her complaint. It is further alleged that the respondent also discriminated against her when she applied for readmission to the Program by telling her that she was ineligible for readmission because of her disability. These two grounds were the basis of the case presented by the applicant during the hearing.

10Both parties presented evidence relating to the treatment of the applicant while she was enrolled as a student in the Dental Hygiene Program. The applicant argued in its written submissions prior to the hearing and in oral argument that the respondent violated its duty under the Code to accommodate the applicant while she was a student. The respondent argued in its written submissions that “… there as absolutely no failure on the part of APLUS to accommodate Ms. Ouji’s needs for extra-assistance.” The respondent presented extensive written and oral evidence in support of its argument that there was no failure to accommodate in breach of the Code. At no time during the hearing did the respondent argue that the complaint related solely to the issue of discrimination in the handling of the applicant’s application for readmission.

11In the opinion of the Tribunal, it did not expand the subject-matter of the complaint. The Application which was before the Tribunal clearly raised the issue of discrimination on the basis of disability because of the failure to accommodate the applicant’s needs while she was a student enrolled in the Dental Hygiene Program.

12Concerning the second ground for the Request for Reconsideration, the respondent argues that it put the current APLUS Institute policy on accommodation and related forms to the Tribunal during the hearing. This is inaccurate. At no time was the current policy and related forms made an exhibit before me. While they may have been disclosed to the applicant as arguably relevant documents, that does not make them evidence in the hearing. They do not form part of the file. The respondent had ample opportunity to put these documents into evidence but did not do so. It would not be fair to allow the respondent to present new evidence at this stage when that evidence was apparently readily available at the time of the hearing.

13For the above reasons, the Request for Reconsideration is refused.