Bruce v. Greater Essex County District School Board, 2010 HRTO 2129

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenneth Bruce

Applicant

-and-

Greater Essex County District School Board and Robert Colak

Respondents

RECONSIDERATION DECISION

Adjudicator: Mary Truemner

Date: October 21, 2010

Citation: 2010 HRTO 2129

Indexed as: Bruce v. Greater Essex County District School Board

INTRODUCTION

1The applicant filed an Application on March 19, 2009 (the “Application”), under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). It alleges reprisal contrary to the Code on the basis of incidents in February 2009 which were related to Applications he previously filed in 2008, at the Tribunal (the “2008 Applications”), alleging discrimination in employment.

2The Application alleges that Mr. Colak, the principal of Western Secondary School, “had delivered, by Sgt. Paul Smith of the Amherstburg Police Service, a letter dated February 2, 2009.” The Application alleges that this letter was a reprisal for the applicant having claimed his rights under the Code and for him having started or taken part in a human rights proceeding in the context of the 2008 Applications.

3The letter advises the applicant that he is no longer permitted on the property of Western Secondary School. The applicant had previously attended on the school’s property to serve one of the personal respondents in connection with the 2008 Applications. The Application alleges that Sergeant Smith, while at the applicant’s home, called the applicant at work to warn him not to return to the school, and not to contact the school or the teacher who was the personal respondent in the 2008 Applications.

4This Decision deals with a Request for Reconsideration (the “Reconsideration Request”) of the Tribunal’s Interim Decision, 2010 HRTO 1024 (“the Interim Decision”). The Interim Decision dismissed the applicant’s Request to add Sergeant Paul Smith and the Amherstburg Police Service as respondents to the Application (the “Request”).

5In refusing the Request, the Interim Decision focused on the absence of any allegation that Sergeant Paul Smith and the Amherstburg Police Service intended to reprise against the applicant for claiming or enforcing his rights, or to participate in proceedings under the Code. Despite the Interim Decision noting that Sergeant Paul Smith and the Amherstburg Police Service (“the proposed respondents”) had not filed submissions in response to the Request, the Tribunal staff had in fact received submissions from the proposed respondents two days prior to the release of the Interim Decision. The applicant’s Reconsideration Request points to those submissions and states the following as his reasons for his Reconsideration Request:

Given that this Tribunal has noted in its decision of May 14th 2010 that they had not yet received the submissions of the proposed respondents, and, given that the proposed respondents admit they had the requisite intent, this Tribunal ought to reconsider its decision to not add these proposed respondents...

DECISION ON RECONSIDERATION

6For the following reasons, the Reconsideration Request is dismissed.

7Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

8Rule 26 states:

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. [emphasis added]

9It is also useful to refer to the Tribunal’s Practice Direction on Reconsideration which 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.

10Given the finality in refusing the Request with respect to the applicant’s pursuit of the proposed respondents, I am satisfied that this Reconsideration Request is with respect to a final decision and is therefore permissible under the Tribunal’s Rules.

11The applicant refers to the submissions of the proposed respondents as an admission of an intention to reprise against him contrary to section 8 of the Code. They state the following:

4. It appears that the Application arises from a long standing dispute between the Applicant and the Respondents regarding the Applicant’s employment status with the Respondent, [School] Board.

5. It is not however clear on the materials provided with respect to this request to add a party as to the nature of the alleged infringement claimed by the Applicant.

6. The Applicant claims that acts of reprisal against the Respondent, Board, [are] in relation to the attempts by the Applicant to enter onto the Respondent’s property to serve an individual named as a Respondent in an[other] Application which was dismissed by reason of undue delay pursuant to the Case Resolution Conference Decision dated February 4, 2010.

7. On Monday, February 2, 2009, the Respondent, Colak, made a complaint to the Service in relation to a Fax received by him from the applicant on Friday, January 30, 2009.

8. As a result of the information received, Smith spoke with the Applicant and advised him that he was not to have contact with any employees at Western High School or attend or have mail or correspondence sent to the school at all from anyone. Smith told the applicant to speak through his lawyer and that a Trespass Notice would be left at his residence with his wife.

9. Prior to this date, the Service and Smith did not have contact with the applicant.

10. If the Respondents, Colak and the Board, had some ulterior motive or improper purpose in making the complaint to the Service and seeking the assistance of the Service, it was not then and is not now known to the Service or Smith.

12I do not agree with the applicant that the proposed respondents’ submissions are an admission that they had the requisite intent to reprise against him for claiming or enforcing his rights, or for participating in proceedings under the Code. The submissions state that the proposed respondents were unaware of any improper purpose the respondents might have had in making a complaint to the police.

13In their Response to the Application, the respondents state that the applicant and another man attended at Mr. Colak’s school attempting to see a teacher named as a respondent in another of the applicant’s proceedings. The Response describes the applicant and his companion as quite agitated. The two men left the package in the office. The teacher, upon learning of the package and who it was from, became upset, not knowing why the applicant, with whom she had conflicts in the past, would be leaving her a package. Mr. Colak decided to return the package, unopened, to the applicant.

14The applicant sent a letter to Mr. Colak on January 30, 2009, stating that he viewed the staff’s refusal to accept the package on the teacher’s behalf as a breach of his rights under the Code, but, in the meantime,

“as a result of his concerns about the safety and well-being of his staff and school, the Principal arranged to issue a trespass letter to the Applicant pursuant to the Principal’s duties and obligations under the Education Act.”

15Without deciding whether submissions may be considered evidence, I find that there is nothing new in the material now before me that meets the test of Rule 26.5(a). The proposed respondents’ submissions cannot be reasonably read as admitting they intended to reprise against the applicant, nor can such an intent be reasonably inferred from them. Therefore, there is no new evidence that could potentially be determinative of the case, and I find there is no basis on which to reconsider the decision refusing to add the proposed respondents as parties.

OUTSTANDING REQUESTS

16Pursuant to the Tribunal’s Interim Decision, the respondents were ordered to file a Response and deliver it to the applicant by June 18, 2010. They filed their Response, opposing the Application, on June 17, 2010, but they neglected to deliver it to the applicant. On June 21, 2010, the Tribunal sent the Response to the applicant, informing the applicant that he had 14 days to file any Reply.

17On June 23, 2010, the applicant emailed the Tribunal requesting that the respondents be deemed to be in default of their obligations, and that they be treated pursuant to Rule 5.5 of the Tribunal’s Rules of Procedure. On June 30, 2010, the applicant filed his Reply which was due May 3, 2010, and stated that he received the Response on June 24, 2010. However, the applicant requests that the Tribunal exercise its discretion under Rule 5.5 to a) deem the respondents to have accepted all of the allegations in the Application; b) proceed to deal with the Application without further notice to the respondents; c) deem the respondents to have waived all rights with respect to further notice or participation in the proceeding; and d) decide the matter based solely on the materials before the Tribunal. The applicant also requests that the Tribunal “allow Mr. Bruce to perfect his claim for remedial damages.”

18Rule 5.5 allows the Tribunal to exercise discretion to make orders as requested by the applicant, but only in cases “where an Application is delivered to a Respondent who does not respond to the Application.” I find that the respondents in this case did respond to the Application; therefore, Rule 5.5 does not apply. Furthermore, I note that the applicant’s position that he was prejudiced by having less time to prepare a Reply is not borne out by his own submission that he received the Response from the Tribunal which gave him almost two weeks to file a Reply, and then he filed a Reply, without requesting an extension, prior to its due date. Mr. Bruce’s request that the Tribunal not accept the Response and apply Rule 5.5 to the respondents is dismissed.

19The applicant and respondents have mediation scheduled with the Tribunal for November 26, 2010. If the Application does not resolve as a result of mediation, then the Tribunal will address the applicant’s Request to amend the Application to include section 9 as a ground. Given my refusal to reconsider the earlier Interim Decision I will not address the renewed Request to add Sergeant Paul Smith and the Amherstburg Police Service as respondents.