HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jeffrey McLennon
Applicant
-and-
York University
Respondent
RECONSIDERATION DECISION
Adjudicator: Geneviève Debané
Indexed as: McLennon v. York University
1This Application was filed on January 5, 2010, pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), against York University, Linda Lakats, Lewis Cassar and Mavis Lam. This matter is scheduled for a hearing on the merits in Toronto on January 23 and 24, 2012.
2In a previous Interim Decision (2011 HRTO 2128) issued on November 24, 2011 (the “November 2011 Interim Decision”), the Tribunal ordered the removal of Linda Lakats and Lewis Cassar as personal respondents and sought submissions with respect to the jurisdiction of the Tribunal over the respondent Mavis Lam.
3On January 4, 2012, the Tribunal issued Interim Decision 2011 HRTO 1771 (the “January 2012 Decision”), dismissing the Application against Mavis Lam.
4On January 11, 2012, the applicant filed with the Tribunal a Request for Reconsideration of the November 2011 Interim Decision and the January 2012 Interim Decision. The Tribunal did not direct the respondent to file any submissions with respect to this Request.
5The Request for Reconsideration filed by the applicant indicates in relation to the January 2012 Interim Decision that he did not receive notice of the proceeding or a hearing, that it is in conflict with established case law or Tribunal procedure, and that the proposed reconsideration involves matters of general or public importance. In support of his Request for Reconsideration the applicant argues amongst other things that:
a. The January 2012 Interim Decision made on the eve of the hearing shows bias against the applicant and does not comply with sections 1 and 34 of the Code;
b. The applicant disagrees with the Tribunal’s interpretation of jurisprudence and the Tribunal did not provide the applicant with copies of those decisions;
c. Because the Tribunal did not seek submissions from the respondent in the November 2011 Interim Decision, this demonstrated a preconceived notion on what the decision would be;
d. That the adjudicator is biased and “is not suitable for making decisions against racist or racial discrimination”; and
e. The applicant provides detailed submissions and case law on why his Application against Mavis Lam should be continued.
6The applicant has provided no evidence that he did not ultimately receive the Tribunal’s November 2011 Interim Decision, which directed him to file submissions. The November 2011 Interim Decision was sent to him by different methods of delivery, including by mail and by email. He was also given an extension of time to file his submissions. On December 8, 2011, the Tribunal was advised that the applicant had not picked up the November 2011 Interim Decision, which was couried to him. The Tribunal emailed the November 2011 Interim Decision to the applicant’s email address that same day. The next day, on December 9, 2011, the November 2011 Interim Decision was again sent to the applicant via email and he was granted an extension until December 22, 2011, to make submissions on the standing of Ms. Lam. The Tribunal notes that it has received a numerous emails from the applicant during this time period, in which the applicant used the email address to which the Tribunal sent the November 2011 Interim Decision.
7The applicant has provided no reasons as to why the November 2011 Interim Decision should be reconsidered. It appears that the applicant is not taking issue with the removal of Linda Lakats and Lewis Cassar as personal respondents, but only with respect to the paragraphs of the decision which sought submissions on Mavis Lam as a proper respondent.
ANALYSIS AND FINDINGS
8Under section 45.7 of the 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.
9The Tribunal has issued Rules governing such requests. 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.
10The 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.
11As 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.
12The January 2012 Interim Decision finally disposes of the Application with respect to the respondent Mavis Lam and therefore, it is a final decision for the purposes of Rule 26.
13However, having reviewed the submissions of the applicant, which includes submissions on the merits of the Tribunal’s January 2012 Interim Decision, the applicant’s Request for Reconsideration is denied for the reasons that follow.
14I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.
15As noted above, I am satisfied that the applicant had notice through the November 2011 Interim Decision of the opportunity to file submissions on the issue of Mavis Lam’s standing as a respondent.
16Regardless, I have considered the arguments advanced by the applicant on the merits of the January 2012 Interim Decision, and the applicant’s submissions do not establish that the January 2012 Interim Decision was in conflict with established jurisprudence or that the Request for Reconsideration raises a matter of public or general importance. In fact, the applicant seeks to raise issues which were considered in the January 2012 Interim Decision.
17With respect to the applicant’s allegations that I am biased, I find no basis for his assertions.
18The legal principles related to reasonable apprehension of bias were set out by De Grandpré J. in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:
. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
19In my view, a reasonable, right-minded and informed person, viewing the matter realistically and practically, and having thought the matter through, would not conclude that the January 2012 Interim Decision raises a reasonable apprehension of bias. The respondent raised the issue of Mavis Lam’s standing as a respondent in the matter on numerous occasions, and had provided some reasons for that position. Regardless, the Tribunal has the power to ensure that an application is properly within its jurisdiction, and to seek submissions, on its own motion, as to why an application falls within that jursidiction. The fact that I found that the Tribunal did not have jurisdiction with respect to the allegations made against Mavis Lam based on the Tribunal’s jurisprudence and the applicant disagrees with this finding are not circumstances that give rise to a reasonable apprehension of bias.
20The Request for Reconsideration is denied.
Dated at Toronto, this 16th day of January, 2012.
“Signed by”
Geneviève Debané
Vice-chair