Browne v. Niagara (Regional Municipality), 2010 HRTO 2511

Human Rights Tribunal of Ontario

Between:

Angela Browne Applicant

-and-

Regional Municipality of Niagara Respondent

Reconsideration Decision

Adjudicator: Jennifer Scott Date: December 20, 2010 Citation: 2010 HRTO 2511 Indexed as: Browne v. Niagara (Regional Municipality)

Written Submissions by: Angela Browne, Applicant (Self-represented)

INTRODUCTION

1On October 22, 2010, the Tribunal issued its decision, 2010 HRTO 2141, dismissing the applicant’s claim that the Regional Municipality of Niagara (“Niagara”) had discriminated against her on the basis of her disability when it failed to provide inter-municipal transit.

2On November 18, 2010, the applicant filed a Request for Reconsideration of the Tribunal’s Decision, as provided for in section 45.7 of the Ontario Human Rights Code (the “Code”). In her Request for Reconsideration, the applicant claims the Tribunal’s decision is in conflict with established case law and the Reconsideration Request involves a matter of public importance that outweighs the public interest in the finality of Tribunal decisions. The applicant disagrees with the Tribunal’s refusal to deal with her complaint involving specialized transit because of the insufficiency of the record before it.

DECISION

3The Request for Reconsideration is dismissed.

RELEVANT LEGISLATIVE PROVISIONS

4Sections 45.7 and 45.8 of the Code provide the Tribunal with authority to reconsider its decisions while confirming the finality of the Tribunal’s 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.

45.8 Subject to section 45.6 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.

5Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration as well as a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers.

6Relevant to this Decision are the following Rules:

25.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision.

25.3. A request for reconsideration must include: (a) reasons for the request, including the basis on which the Tribunal is asked to grant the request for reconsideration; (b) submissions in support of the request; and (c) the remedy or relief sought.

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; (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; (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.

7The Practice Direction on Requests for Reconsideration states, in part,:

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.

ANALYSIS

8This Application concerns the failure of Niagara to provide conventional inter-municipal transit and whether such failure contravenes the Code. The applicant argued the lack of inter-municipal transit discriminates against her on the basis of her disability.

9The Tribunal found the Code does not require a party to create a service that is not being provided. In this case, Niagara does not provide the service of inter-municipal transit and as such, it cannot be found to have discriminated in relation to a non-existent service. The Tribunal dismissed the Application.

10In her Request for Reconsideration, the applicant focuses on specialized inter-municipal transit, a service that Niagara does provide. The applicant is excluded from this service because she does not meet the eligibility criteria and because her use of the service is not included in the permissible trip purposes. The applicant provides detailed legal argument as to why her exclusion contravenes the Code. These arguments were not made during the hearing. This is because the substance of her Application relates to conventional not specialized transit. While the applicant raised tangentially the issue of specialized inter-municipal transit during the hearing of the Application, it was unclear to the Tribunal whether she wanted access to specialized transit given the nature of her complaint.

11In its Decision on the merits of the Application, the Tribunal refused to deal with the issue of specialized inter-municipal transit because the evidentiary record before it was insufficient to address a complaint of this complexity. On this point, the Tribunal stated:

The evidentiary record before me is insufficient to decide the question of whether inter-municipal specialized transit discriminates against the applicant on the basis of her particular disability. The issue of specialized inter-municipal transit raises complex legal questions, including whether it is a special program, that must be determined on a full evidentiary record with detailed legal argument provided. I have neither of those things in this case and as such, I am unable to make any determination on the issue of specialized transit in this Decision.

12The applicant uses the Reconsideration process to make legal and factual arguments that were not made during the hearing and are in response to the dismissal of her main complaint. Reconsideration cannot be used to change the focus of one complaint into a different complaint after dismissal.

13The applicant’s complaint regarding her exclusion from specialized inter-municipal transit raises complex factual and legal issues. These issues cannot be addressed based on the evidentiary record before the Tribunal. It is open to the applicant to file a new application under section 34 of the Code regarding her specialized inter-municipal transit complaint. It will then be clear to Niagara that this is the complaint that it will have to defend. A full evidentiary record will be compiled on this complaint and legal arguments obtained regarding, among other things: (a) the purpose of the specialized inter-municipal transit service; (b) whether the eligibility and trip purpose criteria for using the service contravene the Code; (c) the impact of expanding both the criteria and trip purpose on the service; and (d) whether inter-municipal specialized transit is a special program under the Code.

14The applicant uses the reconsideration process as an opportunity to make a different complaint after her main complaint was rejected by the Tribunal. Reconsideration cannot be used in this way. 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.

15When decisions are made by the Tribunal, it is important that they be seen as final. Reconsideration is a discretionary remedy exercised by the Tribunal in the limited circumstances set out in Rule 25.5. It is only where these circumstances exist that the Tribunal will reconsider its decision.

16The applicant has failed to meet the criteria set out in Rule 25.5. The applicant is attempting to re-argue her case. As stated in the Tribunal’s Practice Direction “Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case”. It is on this basis that applicant’s Request for Reconsideration is dismissed.