HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
D.F.
Applicant
-and-
Children’s Aid Society of Hamilton, Andrea Nicol and Judy Blair
Respondents
RECONSIDERATION DECISION
Adjudicator: Brian Cook
Indexed as: D.F. v. Children’s Aid Society of Hamilton
1On January 7, 2011 the Tribunal issued its Decision, 2011 HRTO 59, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.
2The Request to Reconsider (the “Request”) was filed on February 8, 2011. The applicant forwarded further submissions in support of the Request on February 11, 2011 and again on March 31, 2011.
3The Application alleged that the respondents had discriminated against the applicant on the grounds that as a father he was treated differently than his ex-spouse, and that he also experienced discrimination on the basis of disability. In the Request, the applicant submits that the Application should not have been dismissed. He also submits that there is new evidence that was not available at the time of the hearing that shows that the Application should have been allowed.
The Reconsideration Test
4Under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (“Code”), the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules:
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.
5The 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). Most relevant to this Decision is Rule 26 which states:
26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision
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.
6The 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.
7As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen 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.
THE REQUEST FOR RECONSIDERATION
8For the most part the Request is an attempt to re-argue the case. As discussed above, a reconsideration request will not be granted on this basis. Once the parties 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. I find that most of the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.
9The applicant submits that there is new evidence that shows that the Decision should be reconsidered. The new evidence consists of a letter written by the applicant’s current spouse, a publication of the corporate respondent, a decision of a Family Court judge, and a newspaper article.
The letter from the applicant’s spouse
10The letter from the applicant’s spouse concerns a meeting on March 13, 2007. The people at the meeting were the applicant, his spouse, and Andrea Nicol, one of the personal respondents. The applicant recorded the meeting. In the Decision, the meeting was discussed in the following terms (at paragraphs 36 – 37):
One of the things that happened at this meeting was that the applicant produced a transcript of a taped telephone conversation that occurred on March 4, 2007. On March 4, the children were at the applicant’s home. This was the day before the “knapsack incident” at the school. The conversation occurred because the younger child had indicated that he wanted to go to his mother’s home after school the next day (Monday) rather than to his father’s. The conversation started between the applicant and L.F. L.F. then asked to speak to their younger son. According to the transcript of the conversation, L.F. told her son that if he did not want to be with his father, he could either call Ms. Nicol, or call the police and “tell them that your Dad hit you.”
The applicant testified that he produced this transcript at the meeting with Ms. Nicol to show that L.F. was advising the children to make false allegations of child abuse with the police. According to the transcript of the conversation on March 13, 2007, that the applicant produced, Ms. Nicol replied that L.F.’s advice appeared to be “safety planning”. Ms. Nicol testified that the transcript of the March 4 telephone conversation that the applicant produced at the March 13 meeting did not indicate that L.F. had advised her son to tell the police that the applicant had hit him. The transcript of the March 13 meeting does not include a recitation of the March 4 transcript but the parts that are mentioned regarding L.F.’s advice to her son do not indicate that there was any suggestion that he tell the police he had been assaulted, although there is indication that she told him that he could call the police for assistance.
11The applicant’s allegation at the hearing was thus that he had recorded a conversation between L.F. (his ex-spouse) and one of their sons, and that during the recorded conversation, L.F. had advised their son to call the police and tell them that D.F. had hit him. The applicant produced a transcript of the March 4, 2007 conversation between L.F. and their son at the March 13, 2007 meeting with Ms. Nicol.
12At the hearing, the applicant alleged that Ms. Nicol read the transcript, including L.F.’s advice that their son call the police and make false allegations about the applicant, and stated that the advice could be called “safety planning”.
13At the hearing, Ms. Nicol confirmed that she did read a transcript of the March 4, 2007 conversation, but that to her recollection the transcript did not indicate that L.F. had advised the applicant’s son to call the police and make false allegations. The transcript of the March 4, 2007 conversation supplied by the applicant does indicate that L.F. advised the son to call the police in the manner alleged by the applicant. The respondents suggested that the version of the transcript that the applicant produced at the hearing was different than the version he produced at the March 13, 2007 meeting.
14The letter from the applicant’s spouse that has been prepared in support of the Request confirms that she was present at the March 13, 2007 meeting, that she witnessed the fact that the applicant provided Ms. Nicol with a transcript of the March 4, 2007 meeting that showed that L.F. had advised the applicant’s son to call the police and make false accusations, and that Ms. Nicol dismissed this by asserting that she felt that the advice was safety planning.
15In a supplementary submission in support of the Application, the applicant refers to a document entitled “Summary of Events”. It includes a notation that the applicant listened to the recording of the March 4, 2007 meeting and heard L.F. tell his son to call the police and make false allegations. He included records from his computer which he says show that this document was written on the morning of March 13, 2007, before the meeting that occurred later that day.
16The significance of all of this evidence for the applicant is that he believes that it proves that L.F. did tell her son that he could call the police and make false accusations about the applicant and that Ms. Nicol was aware of this and described the advice as safety planning.
17As discussed in the Decision, the issue in this Application was not whether the applicant was treated fairly or appropriately by the respondents. To succeed, the applicant had to show that the reason that he was treated unfairly was that he is a man and/or a father.
18Even if I accept for the purposes of this Reconsideration Decision that the unsworn letter from the applicant’s wife is reliable evidence, it is not new evidence that is potentially determinative of the Application because it does not provide any evidence that any inappropriate or unfair treatment occurred because of the applicant’s sex or family status.
The publication of the corporate respondent
19Another document submitted by the applicant in support of the Request is a bulletin from the Hamilton Children’s Aid Society entitled “Care Update”, Volume 4, Issue 2, March 2005. The publication includes a photograph of a group of people in a kitchen. The caption under the picture states: “A new teaching kitchen will enable the Society to teach young mothers and youth that live on their own how to cook easy and cost-effective, yet nutritional meals.” The applicant points out that young fathers could also benefit from such instruction. In his view, the fact that the publication mentions only young mothers demonstrates that the corporate respondent discriminates against fathers. The applicant submits that this is relevant to his Application because it provides general support for one of his specific allegations arising out of a case note that indicates “we are there to fight on her behalf.”
20The first thing to note about the bulletin is that, based on its publication date of March 2005, it is clearly not new evidence that was not available at the time of the hearing. Secondly, the bulletin is not directly relevant to the events in the Application. The applicant asks the Tribunal to comment on the bulletin and to rule that the provision of a service that is designed for mothers and not for fathers is discriminatory. This is not something that is appropriate to address in the context of a Request for Reconsideration.
21The allegations regarding the case note were discussed at paragraph 23 of the Decision:
A case note dated September 25, 2006 from Ms. Nicol includes the phrase “We are there to fight on her behalf.” The applicant believes that this notation is proof of discrimination. In his view, it shows that the respondents saw their role as fighting on behalf of L.F. and against the applicant. Ms. Nicol testified that the notation was based on things that L.F. said and indicated that L.F. incorrectly thought that the Society’s role was to fight on her behalf. I note that the context of the impugned comment is information from L.F. and I accept the respondents’ explanation for the notation.
22In my view, the bulletin does not provide any basis to suggest that my finding on this point was incorrect and nor does it provide a basis to reconsider the Decision.
Decision of the Family Court Judge
23At the hearing, the applicant sought to introduce a decision of a Family Court Judge. The decision dates from 1995. The parties were two separated parents. Ms. Blair, one of the personal respondents, was a witness at the hearing before the Judge and the Judge made comments about her involvement in the case. I did not permit the applicant to introduce the decision into evidence.
24In the Request, the applicant seeks a reconsideration of my decision at hearing not to admit the decision of the Family Court Judge into evidence. He submits that the decision shows that the judge had serious concerns about the investigation that was conducted in the case before her.
25The decision of the Judge is specific to that particular case. The case involved allegations of sexual abuse by one of the parents and is not factually similar to the case in the Application.
26I find that there is no reason to reconsider my decision to exclude the decision of the Family Court Judge.
Newspaper article
27On March 31, 2011, the applicant forwarded an opinion column written by a Toronto Star columnist. The article expresses the opinion that there should be more oversight of Children’s Aid Societies, and discusses some recent cases where individuals were charged with criminal offences and where the CAS was involved with the families at the time of the offences.
28According to the applicant, this article is relevant to the Request because, in one of the cases, a judge found that evidence provided at trial by a CAS worker was not credible.
29In my view, this article has no relevance to the issues in the Application and does not provide any basis for a reconsideration.
Decision
30I conclude that the applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. He has also not established the existence of any other of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.
Dated at Toronto, this 19th day of April, 2011.
”signed by”____________
Brian Cook
Vice-chair