Human Rights Tribunal of Ontario
B E T W E E N:
Norman Sartor Applicant
-and-
Access AIDS Network Respondent
RECONSIDERATION DECISION
Adjudicator: David A. Wright Date: June 22, 2011 Citation: 2011 HRTO 1200 Indexed as: Sartor v. Access AIDS Network
APPEARANCES
Norman Sartor, Applicant ) Self-represented Access AIDS Network, Respondent ) Kathleen Stokes, Counsel
Reasons for Decision
1This is a Request for Reconsideration by the applicant of the Tribunal’s Decision dismissing this Application on the basis that it did not raise a prima facie case, 2010 HRTO 763. By Case Assessment Direction dated May 18, 2011, the Tribunal held that a conference call would be held to hear oral submissions. The parties were directed to address the issues of whether the request for reconsideration should be granted and whether, assuming the request were to be granted, there is a reasonable prospect that the Application would succeed.
2Rule 25.5 sets out the limited circumstances in which reconsideration may be granted:
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.
3The applicant submits that the hearing was contrary to the principles of procedural fairness. He states that the adjudicator stated during the oral hearing that there was a prima facie case but that the decision stated the opposite. He states that he then left the hearing and would not have left had the adjudicator not confirmed that there was a prima facie case. The respondent states that after the parties made submissions on whether the Application established a prima facie case of discrimination, the adjudicator reserved his decision. The respondent argues that there was no violation of procedural fairness.
4Had the adjudicator found that there was a prima facie case, the hearing would have continued rather than being adjourned. The applicant may have misunderstood what occurred. In any event, it is unnecessary to determine whether there was a violation of procedural fairness, since I would not grant reconsideration in any event.
5Reconsideration is a discretionary remedy and is granted only in limited circumstances: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, at paras. 10-19. In my view, reconsideration should not be granted if a party’s position on the application itself has no reasonable prospect of success. Having heard the parties’ submissions on this issue and reviewed the materials filed, I conclude that this Application has no reasonable prospect of success.
6The applicant alleges that the respondent, a non-profit, community-based charitable organization has discriminated against him on the basis of sexual orientation contrary to s. 1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). He states, first, that the respondent’s “healthy sexuality” program discriminates because it addresses issues of heterosexism. He suggests that this “attacks” heterosexuals by suggesting that all heterosexuals are heterosexist. Second, he suggests that the respondent has certain programs targeted at sexual minorities including gays, lesbians, and transgendered persons but none targeted at heterosexuals or sero-discordant couples. This, he alleges, constitutes discrimination on the basis of sexual orientation.
7Regarding the applicant’s first allegation, it is incorrect to suggest that a program targeting heterosexism suggests that all heterosexuals are heterosexist or is discriminatory. Education about historical or discriminatory attitudes is not a violation of the Code; in fact it combats the discrimination the Code exists to prevent, and there is no evidence that the respondent’s programs suggest all heterosexuals are heterosexist. There is no reasonable basis to find, as a matter of law, that this program is discriminatory.
8As for the applicant’s second allegation, I note that the respondent states that it does offer services to heterosexuals and its materials support that claim. However, even assuming it did not, it is not a violation of the Code for an organization such as the respondent to offer a program targeting sexual minorities or other specific groups. This is specifically permitted by s. 14(1) of the Code, which reads as follows:
A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.
9The applicant has significant disagreements with how the respondent uses its funds. He has made these disagreements clear through correspondence with the respondent, its staff and board and in the media, as he is entitled to do. Those concerns and disagreements do not, however, amount to discrimination within the meaning of the Code and the Application has no reasonable prospect of success.
10Therefore, the Request for Reconsideration is dismissed.
Dated at Toronto, this 22nd day of June, 2011.
“Signed by”
David A. Wright Associate Chair```