Angela Grogan v. Toronto District School Board, 2011 HRTO 1196

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angela Grogan

Applicant

-and-

Toronto District School Board, Alan Avery, Emmanuel Moura,

Patricia Hodgins and Sherrie Ann Burmingham

Respondents

RECONSIDERATION DECISION

Adjudicator: Sherry Liang

Date: June 21, 2011

Citation: 2011 HRTO 1196

Indexed as: Grogan v. Toronto District School Board

1This is an Application filed on July 8, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), in which the applicant alleges discrimination in employment on the grounds of race, colour, place of origin, ethnic origin, association with a person identified by a ground of discrimination, and reprisal.

2By Statement of Claim dated November 19, 2010 (subsequently amended on December 21, 2010), the applicant also commenced a civil action against the respondents, as well as additional defendants.

3By decision dated May 18, 2011, 2011 HRTO 954, I dismissed the Application, finding that it was barred under section 34(11) of the Code. The applicant has filed a Request for Reconsideration of that decision. Although they were not directed to by the Tribunal, the respondents filed a Response to the Request. It is unnecessary to consider the Response because in any event, I find the applicant has not established that the Request meets the criteria for reconsideration of a Tribunal decision.

RECONSIDERATION OF A TRIBUNAL DECISION

4Section 45.7 of the Code provides the Tribunal with explicit authority to reconsider its decisions. The Tribunal has issued rules governing Requests for Reconsideration as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers.

5Rule 26 reads, in part, as follows:

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 and orders.

6The Tribunal’s Practice Direction on Reconsideration begins with the following statement.

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.

7As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

8In this Request, the applicant relies on the criteria in Rules 26.5(c) (conflict with established jurisprudence or procedure) and 26.5(d) (other factors outweighing public interest in finality).

9I have reviewed the applicant’s submissions and they do not refer to any established jurisprudence or Tribunal procedure with which the decision is said to be in conflict. It appears that the basis for the applicant’s Request is Rule 26.5(d), the presence of other factors that outweigh the public interest in finality.

10In a nutshell, the applicant, through counsel, submits that “findings of fact” made in the Tribunal’s decision will result in the dismissal of her action in the Superior Court of Justice. Specifically, she states that the Tribunal’s conclusion that this is a human rights matter launched in the Superior Court of Justice means that it is unlikely that the Superior Court of Justice would take jurisdiction of the matter as it is based on acts of discrimination, which fit squarely within the Tribunal’s jurisdiction. Counsel for the applicant states that it was only upon receipt of the Tribunal’s decision that he understood the implication of section 46.1(2) of the Code, which reads:

Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

11Counsel submits that after doing some research, he has concluded that “the Statement of Claim would likely be dismissed as indeed, the true nature of the civil action is based on discrimination and reprisal which all fall under Part I of the Code.”

12Counsel therefore submits that if the dismissal of the Application stands, the applicant would have no opportunity to have her case adjudicated upon in the Superior Court of Justice and this would leave her without a remedy for the alleged Code violations.

DECISION

13As is apparent, the applicant’s submissions do not question the Tribunal’s reasoning in applying section 34(11). Rather, the applicant seeks reconsideration of the decision because of her (or her counsel’s) understanding of the impact of the decision on her civil suit. In a sense, the applicant’s submission is that she did not fully assess or understand the implications of filing her civil claim, and the potential application of section 34(11), at the time she filed it.

14Whether or not my decision will have the impact she believes it will have, this is not a factor within the meaning of section 26.5(d) that outweighs the public interest in the finality of the Tribunal’s decisions. The decision sets out the reasons why I concluded that the applicant’s civil claim, based on “intentional or negligent infliction of mental suffering, defamation, and conspiracy to interfere with contractual relations”, seeks damages arising out of alleged Code violations. Those reasons speak for themselves and I do not find it appropriate to either speculate on how a court or other tribunal might understand it, or to address the applicant’s interpretation of it.

15The possibility that the civil claim may be dismissed is not a basis for reconsideration of the decision. Section 34(11) is a jurisdictional bar. In determining whether it applies, the Tribunal does not have the discretion to refuse to apply it based on an assessment of the potential strength of the civil claim. I did not do so in arriving at my decision, and it would not be proper to take this into account in deciding this Request.

16The applicant states that it is her intention to discontinue the Statement of Claim before the Superior Court of Justice but it is apparent that the claim was continuing at the time of the Tribunal’s decision and has not yet been discontinued.

17Finally, I note that counsel has incorrectly asserted that the Code gives the Tribunal the exclusive jurisdiction to deal with violations of one’s human rights. In fact, many other decision-makers have not only the power but also the responsibility to apply the Code: Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42; Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14.

18As the applicant has not established the existence of the criteria in Rules 26.5(c) or (d), and none of the other criteria apply, the Request for Reconsideration is denied.