Traversy v. Human Rights Tribunal of Ontario, 2011 HRTO 1427

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Norman Traversy

Applicant

-and-

Human Rights Tribunal of Ontario AND Sherry Liang

Respondents

RECONSIDERATION DECISION

Adjudicator: Pamela Chapman

Date: July 28, 2011

Citation: 2011 HRTO 1427

Indexed as: Traversy v. Human Rights Tribunal of Ontario

1This Decision addresses a Request for Reconsideration of the Tribunal’s Decision, 2011 HRTO 323, dismissing this Application.

2On March 17, 2011, the applicant filed a Request for Reconsideration under section 45.7 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”).

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.

3Rule 26.1 of the Tribunal’s Rules of Procedure provides any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision. Rule 26.5 provides:

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.

4The criteria set out above are the only ones I am entitled to consider when dealing with a Request for Reconsideration. The applicant indicates that the reasons for his request fall within paragraphs a, c and d of Rule 26.5.

5While the Request for Reconsideration does refer to facts in support of the applicant’s claim of discrimination, none of those facts are new, and they were all available to the applicant at the time the Application was filed. In essence, the applicant reiterates facts already raised in the Application, and seeks to re-argue their significance. This is exactly what the rule concerning reconsideration prohibits. I am satisfied that the Request for Reconsideration does not raise new facts or evidence that could potentially be determinative of the case, and it would not therefore be appropriate to grant a reconsideration under paragraph (a) of Rule 26.5.

6The applicant also alleges that the decision is contrary to established Tribunal jurisprudence or procedure, and invokes paragraph (c) of Rule 25.5 in support of the Request. The decision to dismiss was made with careful reference to many decisions of the Tribunal and the courts on the issues raised, including reasonable apprehension of bias, abuse of process, adjudicative immunity and the definition of “services” in the Code. The applicant references only one other authority that might touch on any of these issues, a decision of the Federal Court on judicial review from the Canadian Human Rights Commission, Public Service Alliance of Canada and Cathy Murphy v. Canada Revenue Agency, 2011 FC 207. However, reconsideration is not a chance to add new authority to support arguments already made.

7This decision does touch upon one of the issues which was before me in the decision which the applicant asks be reconsidered, which is the definition of a “service” in the Code, and in particular the extent to which government actions can be considered “services”. The government action in issue in the Murphy case was the enforcement by the Canada Revenue Agency (“CRA”) of the Income Tax Act. The Federal Court found that the decision of the Canadian Human Rights Tribunal that the enforcement functions performed by the CRA did not constitute a “service” within the meaning of section 5 of the Canadian Human Rights Act (“CHRA”) was reasonable, citing earlier law which had concluded that not every government activity is a service. The decision in Murphy is not in any way inconsistent with my decision on the meaning of “services” vis-à-vis adjudication, presuming that a decision in the federal sector relating to the correct interpretation of the CHRA is relevant to a determination by the HRTO pursuant to the Code. This reference by the applicant does not establish that the decision is contrary to established Tribunal jurisprudence.

8The applicant also refers to various statements concerning the mandate and role of the HRTO on its website, and also to the Tribunal rules, presumably in support of the claim that the decision is contrary to established Tribunal procedure. In particular, he claims that the Tribunal rules, and its statement of “Mandate, Mission and Core Values”, provide that no application will be dismissed without an oral hearing. This is not accurate. The Code (s. 43(2)) and the Rules (Rule 3.5) require that no application within the jurisdiction of the Tribunal be finally disposed of without affording the parties an opportunity to make oral submissions. However, the Tribunal is permitted to, and typically does dismiss applications that it finds to be outside its jurisdiction, like this one, on the basis of written submissions (see Rule 13). There is no merit to the submission that the HRTO’s decision is contrary to established procedure on that basis.

9The bulk of the references in the Request for Reconsideration are presumably intended by the applicant to fall within Rule 25.5(d) as “other factors” which would justify reversing the decision to dismiss the Application.

10First, the applicant asserts that “by rendering her legal Decision in a Tribunal specifically empowered to determine law, Ms. Chapman has been practicing law without a license”. For this reason he submits that my decision must be set aside, and the matter put before another adjudicator “in compliance with the LSUC’s rules and regulations”.

11The applicant is correct that I am not permitted to practice law; however, I do not practice law, and did not do so by issuing a decision in his case. While I was called to the Bar in Ontario in 1988, I ceased paying the fees required to maintain in good standing my membership in the Law Society of Upper Canada (“LSUC”) in 1996, three years after I first became a full-time adjudicator (at that time as a Vice-chair at the Ontario Labour Relations Board). I am not required to be a member in good standing of the LSUC in order to work as an adjudicator at an administrative tribunal, and nor is it required for me to teach law at the university level, or to practice as an arbitrator, so I have never restored my standing. I was appointed a part-time member of the HRTO in May 2009, and reappointed for a second term in May 2011. Neither the Code nor the Law Society Act, R.S.O. 1990, c. L.8, nor any other law or regulation requires that I be a member in good standing of the LSUC, nor indeed that I have legal training or have ever been called to the Bar, in order to fulfill my duties as a member of the HRTO. For these reasons, these allegations do not support a reconsideration of the Decision.

12The applicant also alleges that I am in conflict of interest and lack neutrality. There are two aspects to this claim. First, the applicant claims that “it is obvious that both the adjudicator and respondent knew each other and, I am sure, must have spoken to each other regarding this complaint”. No evidence is offered in support of this allegation. In the decision from which reconsideration is sought, I reviewed carefully the steps taken by the Tribunal to ensure that adjudication of the allegation of bias and other jurisdictional issues was separated from representation of the Tribunal and the Vice-chair respondent. In particular, I had no contact whatsoever with the Vice-chair respondent in respect of her handling of the applicant’s earlier complaint, or regarding the Application against her and the Tribunal. I did not claim that I did not know the respondent Vice-chair – I do - but I reject the notion that bias flows inevitably from that fact. The issues around allegations of bias where an application is filed against the HRTO and/or its members are canvassed carefully and thoroughly in the decision in this matter, and in the companion decision of Jogendra v. Human Rights Tribunal of Ontario, 2011 HRTO 322. The allegations made in this Request for Reconsideration, without evidence, do not change the conclusions I reach there about the appropriate approach to such applications, and do not raise a reasonable apprehension of bias so as to merit reconsideration of that decision.

13Lastly, the applicant discloses that his family knew my family when our families lived on the same street in Ottawa, Ontario. He asserts that I must have realized that fact prior to making my decision on his Application, as “the name Traversy is a very uncommon one, I am sure she must have recalled it”. For that reason, he asserts that I am “in a clear conflict of interest”.

14Prior to reading the applicant’s Request for Reconsideration I had no knowledge that he was related to the members of the Traversy family who I knew lived on the same street as my family in Ottawa in the late 1970’s and early 1980’s. I have never met the applicant, and did not even know he existed. Based on his statements in the Request for reconsideration I now know that I met his sister on several occasions, as she was a friend of my sister when they were both in high school. These occasions were rare, as I moved to Toronto to attend university in 1979, when my sister started grade 10, and I visited Ottawa infrequently during the period of her relationship with the applicant’s sister. I never met any other member of the applicant’s family, and did not even know that she had a brother. I do not believe that my sister has had any contact with the applicant’s sister for more than 25 years.

15This distant neighbourhood connection, more than 25 years ago, does not create a reasonable apprehension of bias. There is no foundation for reconsidering the Decision on this basis.

16For all of the reasons set out above, the Request for Reconsideration is denied.