HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Peter Armorer
Applicant
-and-
Ontario College of Social Workers & Social Service Workers
Respondent
RECONSIDERATION DECISION
Adjudicator: Judith Keene
Indexed as: Armorer v. Ontario College of Social Workers & Social Service Workers
INTRODUCTION
1The Tribunal issued a Decision, 2011 HRTO 742, with respect to this Application on April 18, 2011. On May 18, 2011, the applicant filed a Request for Reconsideration of the Tribunal’s Decision. The Request was apparently delivered to the respondent on May 15, 2011.
2Section 45.7(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"), provides that “[a]ny party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules”. The Rules elaborate on the conditions and requirements of such a request. Rule 26.1 states that “[a]ny party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days from the date of the decision.”
3Pursuant to Rule 26.5, 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.
4It is also useful to consider the Tribunal’s Practice Direction on Reconsideration, which 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.
5Of the Rule 26.5 criteria listed on the Request for Reconsideration form, the applicant checked off the following: “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”, and “Other factors exist that outweigh the public interest in the finality of Tribunal decisions”.
6I find no basis to grant reconsideration of the Decision, for the reasons set out below.
Conflict with established jurisprudence
7It appears that the applicant claims that the Decision should have held the College vicariously liable for the actions of the social worker. He cites Persaud v. Toronto District School Board, 2008 HRTO 31, Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, Guest v. Southlake Regional Health Centre, 2010 HRTO 195, and Arzem v. Ontario (Community and Social Services), 2006 HRTO 12.
8There are a number of reasons why the request for reconsideration on this basis cannot succeed. First, the applicant did not give notice to the respondent or the Tribunal that he wished to raise this issue, nor did he raise or argue it at the hearing. The Decision does not deal with the actions of the social worker, who was not a respondent to the Application. More importantly for the purposes of a reconsideration, there is no question of inconsistency or conflict with established jurisprudence. The decisions cited by the applicant all refer to liability of an employer for the actions of an employee. There has been no assertion by any party that the social worker was an employee of the College, and my understanding of the material filed was that she was not.
Other factors
9The Application, which was filed on January 1, 2011, arises from a complaint by the applicant to the respondent (“the College”) regarding a custody and access assessment, apparently completed in late March 2008 by one of the College’s members (“the social worker”). After the assessment, the applicant complained to the College that, among other things, the social worker was biased on the basis of sex, and acted in a discriminatory and unethical manner. The Application alleges that the decision dismissing the complaint against the social worker, and the decision-making process of the College’s Complaints Committee, was discriminatory.
10In his Request for Reconsideration, the applicant takes issue with the fact that the hearing and the Decision were focussed on the conduct of the respondent he named in the Application, the College’s Complaints Committee, rather than on the conduct of the social worker.
11In his Application, the applicant appears to acknowledge that, if he had named the social worker as a respondent to his Application, there would have been a timeliness issue, as his Application was filed almost three years after the date of the assessment he considers to be discriminatory. He did not name the social worker, and therefore there was no occasion for any party or the Tribunal to raise or deal with the issue during the hearing.
12The applicant appears to indicate that the reason he did not name the social worker as a respondent is that he had reviewed the Tribunal’s Practice Direction on Naming Respondents and had concluded that he need not do so because of his belief that the College was vicariously liable for the social worker’s actions.
13The Practice Direction reads in part as follows:
Where there is an organizational respondent who may be held liable for the alleged infringement and is in a position to satisfy any remedies ordered, the naming of individual respondents is generally discouraged. The HRTO has noted in its decisions that the unnecessary naming of individuals, whose conduct is not a central issue in the alleged harassment or discrimination, adds to the complexity of the case and can act as a roadblock to resolution of the dispute (see Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14).
If an individual was acting in the regular course of their employment or duties, you may not need to name the individual as a separate respondent in addition to the organization. Before deciding to name an individual respondent, you may wish to consider:
Is there an organization respondent who you are alleging is liable for the same conduct?
Is there any reason why the organization respondent may not be able to respond to or remedy the alleged infringement of the Human Rights Code?
Is the conduct of the individual a central issue or is the nature of the alleged conduct such that it may be appropriate to award a remedy specifically against that individual if a human rights violation is found, for example where it is alleged that the individual engaged in harassment contrary to the Code?
You may wish to get legal advice if you have any questions about who you should name as a respondent.
14The applicant does not claim to have been unaware that the subject of the hearing was the alleged actions or omissions of the College and not the social worker. Further, there is no evidence before me to lead me to conclude that he was unclear about this. The Case Assessment Direction (CAD) issued on November 23, 2010, which set out the issues to be addressed in the summary hearing, reads in part: “[t]he HRTO does not have the power to deal with general allegations of unfairness in the manner in which a professional body, such as the respondent, regulates one of its members, but only to determine whether there has been discrimination by the respondent on a ground prohibited by the Code….The applicant will make his argument first. He shall be prepared to address the issue of whether the respondent’s decision is protected by judicial immunity and whether it is a “service” under the Code. He shall also be prepared to explain how there is a reasonable prospect that he could prove that the decision of the Complaints Committee constitutes discrimination on the grounds of sex and/or marital status, and indicate the evidence he would use to establish that.” (paragraphs 4 and 8) The CAD makes no reference to any allegation of discrimination against the social worker.
15I find the applicant had the opportunity to name the social worker as a respondent to the Application and chose not to in this case. Given the applicant’s assertion in his Request for Reconsideration that the conduct of the social worker was “a central issue in the alleged harassment or discrimination”, I can see no reason why he did not name the social worker as a respondent, or raise the social worker’s conduct and/or the College’s alleged liability for it, much earlier in the process. It would be unfair to allow him to do so now.
16The applicant’s request does not satisfy the requirements of Rule 26.5.
17The request for reconsideration is denied. .
Dated at Toronto, this 24th day of June, 2011.
“Signed by”
Judith Keene
Vice-chair