Carosi v. Toronto (City), 2010 HRTO 282

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maria Carosi Applicant

-and-

City of Toronto, Andrew Weretelnyk, Anna Kinastowski, Diana Dimmer and Neil Zaph Respondents

AND B E T W E E N:

Claudio Carosi Applicant

-and-

City of Toronto, Andrew Weretelnyk, Anna Kinastowski, Diana Dimmer and Neil Zaph Respondents

Reconsideration DECISION

Adjudicator: David Muir Date: February 8, 2010 Citation: 2010 HRTO 282 Indexed as: Carosi v. Toronto (City)

1The applicants have filed a Request for Reconsideration of the Tribunal’s Interim Decisions, 2009 HRTO 561; 2009 HRTO 702 and 2009 HRTO 2239 in which the Tribunal found that the complaints underlying these Applications, filed with the Ontario Human Rights Commission (the “Commission”) were not continued against any of the respondents resulting in the dismissal of both of these Applications.

2Section 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.

3Rule 25 of the Tribunal’s Rules of Procedure for Transitional Applications under Section 53(3) and 53(5) of the Code provides any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision. Rule 25.5 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.

4I note at the outset that the applicants have previously unsuccessfully sought reconsideration of 2009 HRTO 561 and 2009 HRTO 702. The Tribunal’s Rules do not provide for more than one reconsideration request and accordingly for that reason alone this Request as it relates to those Decisions should be dismissed. I also note that 2009 HRTO 561 dealt with the Tribunal’s determination that these Applications be processed together. Reconsideration is only available for a final decision and for that reason as well, this Request should be dismissed as it relates to 2009 HRTO 561.

5Turning to the substance of the Request, the applicants claim to rely on each of the factors in Rule 25 set out above. However, the applicants’ central submission, putting it at its highest, is that there have been some procedural irregularities in the manner in which these Applications have been processed by the Tribunal including the suggestion that the Tribunal has not followed its own Rules.

6By way of background to this Request a brief narration of the history of this proceeding will be useful. The applicants, husband and wife, allege discrimination on the grounds of age, ethnic origin, place of origin, and race in the areas of goods and services, accommodation, contracts, and employment. The applicants allege that the discrimination arose when they attempted to recoup payment due for work that they completed for the City of Toronto. When first begun, these Applications identified a number of individual respondents and the City of Toronto.

7The respondents stated in their Response to both Applications that all or part of both were outside the jurisdiction of the Tribunal because the Commission had already dismissed the complaints underlying them. This argument was successful and in 2009 HRTO 702, both Applications were dismissed as against the City of Toronto and two individuals, Andrew Weretelnyk, and Anna Kinastowski.

8The respondents also took the position that the Commission had chosen not to “process” the complaints as they related to two other respondents, Diana Dimmer and Neil Zaph. I was not satisfied based on the material before me that this was necessarily the case and advised the parties that the resolution of this latter issue required further submissions from the parties including the production of the original human rights complaint which appear to have not been included with the Applications. Accordingly, the Tribunal on July 16, 2009 requested further submissions from the parties on this latter issue including any documents that would be relied upon. The resolution of the matter was delayed for some time as documents were obtained from the Commission.

9On September 2, 2009, the respondents delivered and filed the cover pages of both human rights complaints underlying these Applications as provided by the Commission. On both complaints, it is noted amongst other things that the “individual respondents Diana Dimmer and Neil Zaph were removed”.

10The applicants were afforded a further opportunity to respond to the question raised by the respondents in a Case Assessment Direction dated October 27, 2009. On November 6, 2009, the applicants’ representative wrote the Tribunal requesting a copy of its letter of July 16, 2009 referred to above. At that time the applicants were given a further opportunity to make submissions on the status of the complaints as they related to Neil Zaph and Diana Dimmer. These submissions were due on or about November 30, 2009. No further submissions were received from the applicants.

11The applicants did state in their correspondence of November 6, 2009 that, contrary to what the cover pages of the complaints indicated, the Commission had advised them that it could not confirm that respondents, Neil Zaph and Diana Dimmer were removed from the complaints. The applicants provided no evidence to support this assertion and did not request an opportunity to present evidence to support it.

12In their Request the applicants rely upon the fact that after the Applications had been dismissed as against the City of Toronto, a letter from the Tribunal styled these Applications as Carosi v. City of Toronto et al. despite the City of Toronto no longer being a respondent. The applicants do not say why this is a basis for a reconsideration of these Decisions.

13The applicants also rely upon a suggestion that the Tribunal “extended unjust and unfair liberties” referring, it appears, to an alleged extension of time to file Responses. Absent some suggestion that this impacted on the applicants’ ability to respond to the issues raised by the Response this is not a basis for reconsideration. There is no basis to claim that the applicants have not been given a fulsome opportunity to make submissions on the issues.

14The applicants’ essential point is that these Decisions should be set aside and they be given an opportunity to make oral submissions. The request seems to flow from a misunderstanding of the statutory requirement to entertain oral submissions. The applicants rely upon Rule 21.1 which provides that when considering a request to dismiss all or part of an Application pursuant to section 45.1 of the Code the parties will be given an opportunity to make oral submissions. This Rule and section 45.1 are not applicable to these circumstances as the Tribunal did not dismiss these Applications on the basis. Rather the Tribunal accepted the respondents’ primary submission that these Applications were outside of the Tribunal’s jurisdiction because the complaints were not continued within the meaning of section 53(3) of the Code.

15Section 43 of the Code provides that the Tribunal may make rules governing its practice and procedures before it. Section 43(2)1 provides that the Tribunal’s Rules must ensure that no application that is within its jurisdiction is dismissed without allowing the parties an opportunity to make oral submissions. The issue raised by the respondents was jurisdictional in the sense contemplated by section 43, that is, the Applications were not within the Tribunal’s jurisdiction and accordingly there was no requirement to give the applicants an opportunity to make oral submissions. In accordance with Tribunal practice in these kinds of cases none was offered. Quite aside from whether or not the Tribunal met its statutory obligations here, there is simply no basis to claim that they have been denied a fair opportunity to state their position and make full submissions on the issues raised by the respondents.

16For all of these reasons the Request for reconsideration of these Decisions is dismissed.