Hendershott v. Ontario (Community and Social Services), 2011 HRTO 1238

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Meghan Hendershott

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services – Ontario Works Program

Respondent

A N D B E T W E E N:

Mel Hendershott

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services – Ontario Works Program

Respondent

A N D B E T W E E N:

Darlene Hendershott

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services – Ontario Works Program

Respondent

Reconsideration and POST-JUDGMENT Decision

Adjudicator: Leslie Reaume

Date: June 28, 2011

Citation: 2011 HRTO 1238

Indexed as: Hendershott v. Ontario (Community and Social Services)

1The complainant filed a Request for Reconsideration of the Tribunal’s Decision, 2011 HRTO 482, pursuant to section 45.7 of the Ontario Human Rights Code, R.S.O. c. H.19, as amended (the “Code”).

2Section 45.7 of the Code provides the Tribunal with explicit authority to reconsider its 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.

3Further to its power to make rules, 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.

4Rule 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.

5The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

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.

6The issues raised in the Request are the same issues which were dealt with in detail by the Tribunal at the hearing including:

1. The role the prohibited grounds of sex and age played in the complainant’s disadvantage in addition to the ground of family status;

2. The implications of multiple births;

3. The calculation of the lost benefits;

4. The basis for dismissal of the Applications of Mr. and Mrs. Hendershott; and

5. Delay in the Commission process.

7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal confirmed 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.

8At its core, this Request for Reconsideration is an attempt to appeal to the Tribunal to change the Decision by re-arguing the case. The complainant has not met the burden of establishing any of the factors set out in Rule 26(5). The complainant’s Request for Reconsideration is denied.

Other Issues

9There are three other issues arising from the original Decision raised by the Respondent and the Commission. I have determined that it is best to consolidate the resolution of these issues with the complainant’s request for reconsideration. This will effectively address the need for one comprehensive document which captures all of the post-hearing issues arising from the original Decision.

10The first request is by the Commission for a minor correction to paragraph 121 at line 5 from the words “from one to two”, to the words “from one to three”. The request is granted pursuant to Rule 25.1.

11The second request is that I reconsider attributing to the respondent the explicit use of the word “bigotry” at paragraphs 37 and 73 of the original Decision. The parties consented to the request and agreed that it was counsel for the Commission who used the word bigotry in response to the submissions of the respondent. I would grant the respondent’s request on the consent of the parties and on the narrow basis that the respondent did not explicitly use the word bigotry. I interpreted bigotry as implicit in the respondent’s submission and as a result the substance of both paragraphs will remain the same apart from this clarification. I make this decision in accordance with Rule 26.5 (d) and waive compliance with the filing requirements set out in Rules 26.2, 26.3, and 26.4.

12The third request is by the respondent for an extension of the timeline for complying with subparagraph 134(3) of the original Decision. The request to extend the time to August 1, 2011, was granted during a conference call held on April 8, 2011 (see Ball v. Ontario (Community and Social Services) 2010 HRTO 1990).

13During the conference call the complainant argued that the effect of the extension should be retroactive to the timeline set out in the original Decision, which gave the respondent 30 days to implement the change to the benefits program. The respondent and the Commission were given an opportunity to file written submissions in relation to the complainant’s request.

14I have reviewed the submissions of the respondent and the Commission. I granted the extension to August 1, 2011, on the strength of the affidavit evidence that the respondent has acted diligently and in good faith in complying with the original Decision. The respondent requested a reasonable period of time to implement the change in benefits, and as a result, I decline to make this extension retroactive.