Lewis v. Re/Max Rouge River Realty, 2010 HRTO 1977

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Patricia Lewis

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Re/Max Rouge River Realty Ltd., David Pearce, Melody Pearce,

and Paul Etherington

Respondents

RECONSIDERATION DECISION

Adjudicator: David A. Wright

Date: September 28, 2010

Citation: 2010 HRTO 1977

Indexed as: Lewis v. Re/Max Rouge River Realty

INTRODUCTION

1The Ontario Human Rights Commission requests reconsideration of the Tribunal’s decision of July 13, 2010, 2010 HRTO 1525, in which the Tribunal found that the Complaint was outside its jurisdiction because the matter was not referred to the Tribunal at a time when the Commission had the statutory power to do so. It argues that the decision must be correct, that the decision denies natural justice and fairness, and that the decision misapprehended material facts.

DECISION

2The Request for Reconsideration is dismissed.

ANALYSIS

3The Commission relies upon Rule 102 (c) and (d) of the Rules of Practice for Commission referred complaints, which read as follows:

102. A request for reconsideration will not be granted unless the Tribunal is satisfied that:

(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.

4The Commission argues that the Tribunal must be “correct” on questions of jurisdiction, citing Dunsmuir v. New Brunswick, 2008 SCC 9. A Request for Reconsideration under the Tribunal’s rules is neither an appeal nor an Application for Judicial Review. There are very particular circumstances in which reconsideration is granted, even where the decision is about the Tribunal’s jurisdiction. Reconsideration is not an opportunity to reargue one’s case, as the Commission attempts to do here: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34.

5The Commission suggests that the Tribunal erred in its approach to the interpretation of the Code, taking a contextual approach and failing to interpret ambiguities and interpretive doubts in a manner that promotes the anti-discriminatory goals of the legislation. Leaving aside the merits of the suggestion that the Code should not be interpreted in a contextual manner, in my view there is no ambiguity or interpretive doubt that for a “referral” of a Complaint to the Tribunal to be effectively made, the Tribunal must receive the referral.

6The Commission argues that the Decision denies natural justice and fairness to the complainant. The concepts of natural justice and fairness cannot give the Tribunal the power to hear a matter over which it has no jurisdiction under the Code.

7Finally, the Commission argues that the Tribunal misapprehended material facts when it held “The Commission, however, did not write to the Tribunal or the parties to advise of the referral as a result of what it states was an administrative oversight”. The Commission argues that the Commission in fact wrote to the complainant and her counsel on November 10, 2009 with a copy to the Tribunal, advising that the Commission had decided to refer the subject matter of the complaint to the Tribunal, thus raising her reasonable expectation that her complaint would proceed to a hearing. The Tribunal did not misapprehend this fact. The letter of November 10, 2009, even assuming it was a “referral” within the meaning of the Code, was made after December 30, 2008, when the Commission no longer had the power to make referrals. As noted at para. 14 of the original decision, to make an effective referral as a result of the transition provisions of the Code, the Commission had to communicate its decision by December 31, 2008.

8The Request for Reconsideration is dismissed.