HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Adrienne Harris
Applicant
-and-
Humber College Institute of Technology and Advanced Learning, Claire Cowan, Clay MacDougall, Kathleen MacMillan, Cindy Hunt and Zeneth Myrie
Respondents
RECONSIDERATION DECISION
Adjudicator: Jennifer Scott
Indexed as: Harris v. Humber College
APPEARANCES BY
Adrienne Harris, Applicant ) On her own behalf
Humber College Institute of Technology and ) Advanced Learning, Claire Cowan, Clay ) Brenda Bowlby, MacDougall, Kathleen MacMillan, Cindy Hunt ) Counsel and Zeneth Myrie, Respondents )
INTRODUCTION
1On November 9, 2009, the Tribunal issued its Decision in this matter, 2009 HRTO 1822, dismissing the Application because the applicant had failed to establish that her race played a role in her grade review process in the nursing program at Humber College Institute of Technology and Advanced Learning (“Humber College”). The Tribunal held that while there were procedural flaws in the grade review process, these flaws were inherent in Humber College’s policy and practices and as such, were applied equally to all students. The Tribunal held there was no evidence the applicant was treated differently because of her race.
2On February 2, 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 R.S.O. 1990, c. H.19, as amended (the “Code”). In her Request for Reconsideration, the applicant submits that a fact finding report completed during a fact finding meeting at the Ontario Human Rights Commission (the “Commission”) in May 2008 should have been provided to the Tribunal. She also relies on an earlier mediation at the Commission in January 2006. Finally, the applicant uses the reconsideration process to repeat the same allegations of discrimination that were made during the hearing before the Tribunal.
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 (Practice Direction #4 Reconsideration).
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.
7Practice Direction #4 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
8The applicant argues there are new facts or evidence that could be potentially determinative of her case that could not reasonably have been obtained earlier. She relies on the fact finding report prepared during the investigation process at the Commission and on an early mediation at the Commission.
9The Commission’s mediation and investigation processes are not relevant to the Tribunal. When an application is abandoned at the Commission, the applicant is required to adduce direct evidence of the alleged discrimination before the Tribunal. The applicant did so during the hearing on October 1, 2009.
10The applicant uses the reconsideration process as an opportunity to express her disagreement with the Tribunal’s finding that she had failed to establish differential treatment on the basis of race. The Tribunal held the treatment she complained of was the result of a flawed grade review process that applied to all students. The Tribunal held, further, that the Caucasian student relied upon by the applicant to show differential treatment did not share the same circumstances as the applicant because she had not failed the same course twice. Humber College’s policy is clear that if a student fails the same course twice, she is required to leave the nursing program for twelve months. As such, the Tribunal held the applicant failed to establish differential treatment on the basis of race.
11In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. 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.
12When decisions are made by the Tribunal, it is important that they be seen as final. Reconsideration does not provide parties with a “second kick at the can”. It 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.
13The applicant has failed to meet the criteria set out in Rule 25.5. The applicant is attempting to re-argue her case by repeating the same arguments that were made during the hearing. The Tribunal has ruled on this claim. As stated in the Tribunal’s practice direction #4, “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.
Dated at Toronto, this 18th day of February, 2010.
“Signed by”
Jennifer Scott
Vice-chair```