Human Rights Tribunal of Ontario
Between:
Linda Saxon Applicant
-and-
Amherstburg Police Services Board and Tim Berthiaume Respondents
Reconsideration
Adjudicator: Michelle Flaherty Date: February 18, 2011 Citation: 2011 HRTO 359 Indexed as: Saxon v. Amherstburg Police Services Board
Decision
1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), raised allegations of discrimination on the basis of disability, marital status, and association with a person identified by a prohibited ground in the provision of goods, services and facilities.
2On January 11, 2011, following a summary hearing under rules 19A.1 and 19A.2 of the Rules of Procedure, the Tribunal dismissed the Application: see 2011 HRTO 77. The Tribunal concluded that the Application had no reasonable prospect of success.
3On February 9, 2011, the applicant filed a Request for Reconsideration ("Request") and submissions in support of the Request. A respondent is not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal. In the circumstances of this Request, the Tribunal did not deem it necessary to seek submissions from the respondent.
4Pursuant to section 45.7 of the Code, any party to a proceeding before the Tribunal may request that it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant 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.
5Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. In this regard, it is helpful 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.
6In her Request, the applicant argues that the Decision ought to be reconsidered because it is in conflict with established case law and Tribunal procedure and that the proposed reconsideration involves a matter of general or public importance.
7In essence, the applicant argues that the hearing and Decision were too expeditious and that the Decision was rendered without examination of all of the documentary evidence and witnesses that the applicant would have provided at a full hearing of the matter. In addition, she argues that:
a. it is unfair that disclosure requirements do not apply to summary hearings;
b. the Tribunal referred to a case not raised by the parties (Dabic v. Windsor Police Service, 2010 HRTO 1994) but ignored the cases cited by the applicant (namely, B. v. Ontario (Human Rights Commission), 2002 SCC 66), which she says support her position; and
c. the Tribunal's Decision is inconsistent with privacy legislation and decisions rendered under that legislation.
8The applicant also reiterates arguments made at the hearing disputing the legal position taken by the respondent and taking issue with the legal and factual conclusions reached by the Tribunal.
9The applicant is clearly concerned about the process adopted to determine her Application. The summary hearing process arises out of the Tribunal's Rules of Procedure. While it is an expeditious process, it is designed to be fair to both parties and to ensure a fair determination of the Application. The process adopted in this matter was consistent with the Tribunal's Rules of Procedure.
10In the Case Assessment Directive issued in advance of the hearing, the parties were directed to exchange and file with the Tribunal all of the materials upon which they intended to rely at the summary hearing. The applicant had an opportunity to put the documentary evidence in question before the Tribunal and it is not appropriate to reconsider the Decision because she decided not to do so.
11In any event, I concluded that the factual dispute to which these documents relate was not material to the issue before me at the summary hearing, namely whether the Application had a reasonable prospect of success. I am not satisfied that this conclusion was inconsistent with the Tribunal's case law or its procedure.
12I am not persuaded that the Tribunal's Decision is inconsistent with B. v. Ontario (Human Rights Commission), supra. While that is a leading decision in defining the scope of "family status", this Application was dismissed on the basis that the respondent did not provide services to the applicant within the meaning of section 1 of the Code. Because of that conclusion, it was not necessary for me to determine whether the Application engaged the ground of "family status".
13The Code has different objectives and serves a very different role from the privacy legislation cited by the applicant. I am not convinced that the Tribunal's Decision is inconsistent with privacy legislation or with the case law flowing from it. In any event, given the different roles played by the two statutory regimes, I cannot conclude that there is a basis for reconsidering the Decision in the circumstances.
14The remainder of the applicant's objections to the Decision essentially reiterate arguments she has already made and which were addressed in the Decision.
15While it is evident that the applicant disagrees with the Decision, she has presented no basis to reconsider the Decision.
16The Request for Reconsideration is denied.
Dated at Toronto, this 18th day of February, 2011.
"Signed by"
___________________________________
Michelle Flaherty Vice-chair