Macanovic v. Ontario (Human Rights Commission), 2011 HRTO 697

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jemila Macanovic

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ontario Human Rights Commission

Respondent

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: April 12, 2011

Citation: 2011 HRTO 697

Indexed as: Macanovic v. Ontario (Human Rights Commission)

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision, 2011 HRTO 1, dated January 4, 2011, which dismissed this Application as beyond this Tribunal’s jurisdiction.

2On February 3, 2011, the applicant filed a Request for Reconsideration of the Tribunal’s Decision.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) provides as follows:

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.

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The Tribunal has issued rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008).

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.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

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

8The Tribunal’s Rules of Procedure for Transitional Applications provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 25.5 of the Rules 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.

9As a result, I need to determine whether the material filed by the applicant in support of her Request for reconsideration satisfies any of the criteria set out in Rule 25.5. The applicant relies upon the criteria identified in Rule 25.5(c) and (d).

10The applicant first takes issue with the Tribunal’s decision to deny her request under Rule 3.2 of the Transitional Rules that the respondent be deemed to have accepted the allegations made in her Application.

11The applicant first submits that the Tribunal erred in finding that her statement made in her Application had created some uncertainty as to whether and at what point the applicant intended to proceed with her Application, which led to delay in a Response being filed by the respondent. I disagree. The precise language used by the applicant in her Application is set out at paragraph 4 of my Decision. While this language refers to the applicant’s request for a delay in the Tribunal’s “adjudication process”, she also states more broadly that in light of the Commission’s involvement in her Commission-referred complaint, she believes that it would be unethical and inappropriate for her Application to be “dealt with” at that time. She also makes reference to her desire to have discussions with the Commission to see whether the matter could be resolved “without involving the Tribunal”. In view of these statements, in my view, it was not unreasonable for the Commission to conclude that the applicant was not requesting its formal Response to her Application at that time. This uncertainty was not resolved until the Tribunal sent out its letter of February 2, 2010.

12The applicant refers to this Tribunal’s decision in Bussey v. Boardwalk General Partnership, 2008 HRTO 300, for the proposition that an applicant’s request to defer an Application does not relieve a respondent from its obligation under the Rules to file a Response. In that case, the applicant had filed his Application on September 9, 2008, and subsequently on October 31, 2008, sought to defer the processing of his Application due to a serious medical condition. By the time he sought deferral, the 35-day deadline for filing a Response already had expired. In the circumstances of that case, it was determined that the most fair, just and expeditious manner of proceeding was to require the respondent to file its Response notwithstanding the deferral, so that the matter could proceed expeditiously once the applicant was ready to proceed. This in my view is a different situation from the instant case, where the applicant had included her request that the Tribunal not deal with her Application with the Application itself and where the uncertainty created by that statement was not resolved until February 2, 2010, when it was confirmed that the applicant wished to proceed.

13While the applicant also refers to this Tribunal’s decision in Scharf v. Kiriakakis, 2010 HRTO 1142, I do not see the relevance of this decision to her Request for reconsideration.

14The applicant next notes that the respondent in fact did not file a Response to the substance or merits of her Application, but instead filed a Request for Order during Proceedings seeking dismissal of her Application as beyond this Tribunal’s jurisdiction. The applicant cites a number of Tribunal authorities for the proposition that there are limited circumstances in which this Tribunal will permit a respondent to file a Request for Order prior to filing its Response to the substance or merits of the Application: Grant v. Bombardier, 2009 HRTO 267; Verduci v. Irandoust, 2009 HRTO 1585; Ugolini v. Salvation Army Barrie, 2009 HRTO 1801; and Glynn v. Lowe’s Companies Canada, 2009 HRTO 1180.

15In particular, in Grant v. Bombardier, supra, this Tribunal held that it was important for a respondent to file a complete Response to an Application, even where preliminary jurisdictional issues were raised, unless the preliminary issue raised fell within one of the exceptions set out in Rule 8.2 of the Tribunal’s Rules for s. 34 Applications or within the further exception for matters alleged to be within federal jurisdiction, as established in Masood v. Bruce Power, 2008 HRTO 381. While this is the general rule, this Tribunal also has discretion under the Rules to waive or vary this requirement, as was recognized in Ugolini v. Salvation Army Barrie, supra, at para. 8.

16The problem with the applicant’s submissions on this point is that she is referring to the procedures under the Tribunal’s Rules for s. 34 Applications, rather than to the Tribunal’s Rules for Transitional Applications, which apply to her case. The Transitional Rules apply to cases where a person had filed a complaint under the old human rights system prior to June 30, 2008, which was still outstanding as of the time the Application was filed. Rule 13.2 of the Transitional Rules provides that the completed Response is to include a copy of any Response filed with the Commission under the old system, or if no Response was filed, then a brief statement setting out the respondent’s position on the facts and issues raised in the Application. Rule 13.3 of the Transitional Rules expressly contemplates that in the Response, a respondent may allege that the issues in dispute in the Application, among other things, “are otherwise not within the jurisdiction of the Tribunal”.

17As a result, the Transitional Rules expressly contemplate that a respondent may raise a jurisdictional issue at the time the Response is filed. If a respondent raises a jurisdictional issue in a transitional application, then this Tribunal can consider whether it makes sense to address the jurisdictional issue at a preliminary hearing prior to requiring a response on the substance or merits of the Application, as it did in this case, or to defer consideration of the jurisdictional issue pending receipt of a response to the substance or merits. This is an administrative and procedural decision by the Tribunal.

18Accordingly, under the Transitional Rules, there was nothing inappropriate in the respondent raising the jurisdictional issue when filing its Response to the Application, or for the Tribunal to direct that a preliminary hearing be held on this issue prior to requiring the respondent to file a response on the substance or merits of the Application.

19The applicant next contends that a Vice-chair or Member of this Tribunal was required to issue a notice to the respondent providing an extension for it to file its Response failing which recourse may be had to Rule 3.2 of the Transitional Rules, rather than the Registrar-Transition. No support is provided for this proposition, nor is it well-founded in law. The Registrar at this and other administrative tribunals has the power to grant extensions and to make parties aware of provisions of the Rules and their potential consequences, which is what was done by the Registrar-Transition in her letters dated February 2, 2010 and March 22, 2010.

20The applicant makes reference to Kearns v. 1327827 Ontario, 2009 HRTO 457 as an example of when a respondent will be deemed to have accepted the allegations in an Application due to its failure to file a Response. In that case, the Tribunal had issued two previous decisions, including a decision warning the respondent about the potential consequences of failing to file a Response, before invoking the provision in the Rules deeming it to have accepted the applicant’s allegations. No reference is made in this decision as to whether any Registrar’s letters had been sent prior to the first decision, although a letter is sent with service of the Application advising a respondent of the requirement to file a Response. So by the applicant’s manner of counting, the respondent in this case would have received three warnings, not two. Further, there is no indication in this case that the applicant requested that the Tribunal not deal with the Application, as there was in the instant case and which I have found created uncertainty for the respondent here. Once this uncertainty was resolved by the time of the Tribunal’s February 2, 2010 letter, the respondent in the instant case was given two notices to file its Response, including a warning about the potential consequences under the Rules of failing to do so in the second notice, which is the same amount of notices provided in Kearns.

21The applicant alleges in her Request for reconsideration that I am biased in favour of the respondent apparently for two reasons. First, she alleges that I allowed the respondent extended time to file its Response and did not question its failure to provide a reason for its prior failure to do so. The applicant is in error in making this allegation. I did not grant any extension to the respondent to file its Response or consider its failure to provide a reason for its prior failure to do so. Rather, after the Response had been filed, I heard and determined a Request made by the applicant to strike out the respondent’s Response and to apply Rule 3.2 to deem it to have accepted her allegations, which I denied for all of the reasons set out in my January 4, 2011 Decision.

22Second, the applicant alleges bias on my part because I accepted the respondent’s submission that the applicant’s statement as made with her Application had created uncertainty as to whether she was requiring a Response to be filed. In my view, as already discussed above, this is evidence from the applicant’s own statement as included with her Application. Neither of these allegations by the applicant supports a finding of bias or any reasonable apprehension of bias on my part.

23Finally on this issue, the applicant takes issue with the reference in the Decision to her having filed her Request for Order on April 14, 2010, after the Tribunal had issued its March 22, 2010 letter giving the respondent until April 26, 2010 to file its Response, failing which the Tribunal may have resort to Rule 3.2. The reason this is referenced in my Decision is that the applicant’s Request for Order was filed after the Tribunal already had sent correspondence setting a deadline for the respondent to file its Response, failing which Rule 3.2 may be applied, while the applicant filed her Request for Order seeking application of Rule 3.2 prior to the deadline that the Tribunal already had set. In my view, having set a deadline with which the respondent complied, it would make little sense for this Tribunal to invoke Rule 3.2 for the respondent’s failure to file a Response prior to this deadline, as requested by the applicant after the deadline already had been set.

24In this context, the applicant refers to my decision in Tewogbade v. Toronto Police Services Board, 2009 HRTO 875. In that case, the applicant had made a request that the application be granted on the basis of the failure to file a response after the deadline for filing a response had expired and prior to the Tribunal extending such deadline. The respondent sought an extension from the Tribunal, to which the applicant objected. The extension was granted by the Registrar-Transition. The applicant then objected to the Registrar-Transition’s authority to grant the extension. This resulted in my decision, in which I exercised the Tribunal’s power to waive the requirements of the Rules and allow the respondent to file its response. I see nothing inconsistent in this decision with my Decision as rendered in the instant case.

25The applicant next makes a number of submissions in relation to my decision to dismiss her Application on the basis that it was beyond this Tribunal’s jurisdiction under the Code. The applicant first submits that the Commission employee assigned to her case did not “investigate” at least one of her complaints, because she failed to interview the respondent to that complaint. It is not my jurisdiction to consider whether a Commission employee complied with the mandatory requirement under the former Code to investigate a complaint. The determination I made in my Decision was that because this Application raises allegations about a Commission staff member in relation to her performance of her statutory role of investigating complaints that formed an integral part of the adjudicative scheme under the former Code, this Application in its pith and substance is sufficiently related to the content, reasons and result of a statutory decision as to be beyond this Tribunal’s jurisdiction. This determination does not require me to rule generally on whether what the Commission employee did was sufficient to satisfy the duty to investigate under the former Code. Rather, it involved my consideration of the nature of the applicant’s allegations in the context of the overall administrative and decision-making scheme under the former Code.

26The applicant next alleges that I failed to consider or address this Tribunal’s decision in Braithwaite v. Ontario (Attorney General), 2005 HRTO 31 upheld by the Divisional Court, on the issue of the Tribunal’s jurisdiction. What is important to observe about the Braithwaite decision is that it essentially was a challenge not to the content, reasons or result of a statutory decision, but to the distinction made under the Coroners Act between the mandatory requirement to hold an inquest where a person dies in custody as opposed to the discretion to require an inquest where a person dies as an involuntary psychiatric patient. The issue in that case at its core was whether this legislative distinction was in contravention of the Code as amounting to discrimination because of disability. As a result, the Braithwaite decision is distinguishable from the instant case, and fails to provide a basis for me to reconsider my Decision. In any event, the Braithwaite decision was considered in various of the more recent cases referenced in my Decision.

27The applicant next contends that an investigation is a service within the meaning of the Code, and asserts that her complaint was not just about the content of the investigation report but utilized the content of the report as evidence of the manner in which the Commission employee conducted the investigation. Once again, in my view, this is a distinction without a difference. The point I made in my Decision is that the investigation was an integral part of the statutory decision-making scheme under the Code, such that it was beyond this Tribunal’s jurisdiction.

28The applicant claims that she was denied natural justice because I did not entertain the idea that an investigation had not been conducted by the Commission into at least one of her complaints. She also claims that she was denied natural justice because I ruled against her request to strike the respondent’s Response. There is no basis to support these claims. The applicant had full opportunity to know the issues being raised at the preliminary hearing and full opportunity to make written and oral submissions on the preliminary issues raised. There was no denial of natural justice.

29Finally, the applicant alleges that her complaint which forms the basis of her Application does not just raise issues about the Commission investigation, but also raises issues about her complaints to the investigator’s manager about the investigation. In her complaint, the applicant alleges that she raised her concerns about the investigation with the investigator’s manager, and the manager failed to investigate her concerns and told her that the investigator was performing satisfactorily. In my view, if the applicant’s concerns about the investigation itself are not within this Tribunal’s jurisdiction, then it is hard to see how the way in which a Commission manager responded to those same concerns could convert something that is not within this Tribunal’s jurisdiction into something that is. For example, if a statutory decision is not within this Tribunal’s jurisdiction to review under the Code, it would make little sense to allow a person to complain internally about their disagreement with that statutory decision and then come to this Tribunal to raise issues about the statutory decision-maker’s response to the very disagreement over which this Tribunal has no jurisdiction.

30For all of these reasons, I find that the applicant has not established that my Decision is in conflict with established jurisprudence or Tribunal procedure or that other factors exist that outweigh the public interest in the finality of Tribunal decisions, in relation either to my denial of her request to strike the respondent’s Response and be deemed to have accepted the allegations in her Application or to my determination that her Application is beyond this Tribunal’s jurisdiction.

31Accordingly, the applicant’s Request for Reconsideration is denied.