HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Juan Reyes Applicant
-and-
LifeMark Health Management Inc., Dr. Bob Grisdale, Chantal Sands and Florita Vargas Respondents
RECONSIDERATION DECISION
Adjudicator: Brian Cook Date: July 31, 2012 Citation: 2012 HRTO 1487 Indexed as: Reyes v. LifeMark Health Management Inc.
WRITTEN SUBMISSIONS
Juan Reyes, Applicant Self-represented
Introduction
1On February 9, 2012, the Tribunal issued Interim Decision 2012 HRTO 289. That Decision dismissed the Application as against two insurance companies, Wawanesa Insurance (Wawanesa) and Aviva Canada Inc. (Aviva) on the grounds that the allegations against them are not matters that are covered by the the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant seeks a reconsideration of that Decision.
Background
2The Application was brought against LifeMark Health Management Inc. (“LifeMark”), which was the applicant’s former employer, and against personal respondents who were also employed by LifeMark. It also named Wawanesa and Aviva as additional respondents.
3After reviewing the Application, the Tribunal issued a Case Assessment Direction, dated December 2, 2011, which directed that a summary hearing be held pursuant to Rule 19A of the Tribunal’s Rules of Procedure, to determine if there was no reasonable prospect that the Application, in whole or in part, could succeed.
4The Tribunal scheduled a telephone conference summary hearing for March 26, 2012.
5On January 5, 2012, LifeMark submitted an adjournment request which was granted by the Tribunal. On January 10, 2012, the applicant sent an email to the Tribunal indicating that there was a possibility that he might not be in Canada after February 2012 and that he would prefer a hearing prior to February 10, 2012. On January 10, 2012 the Tribunal advised the applicant that there are no available hearing dates in February 2012.
6The applicant sent another email on January 11, 2012 stating that it is possible that he might not be able to participate in any proceeding by telephone after February 10, 2012 because he was applying for a job in a remote part of the world.
7In the meantime, Wawanesa and Aviva each filed a Request for Order During Proceedings asking that they be removed as respondents.
8These Requests for Order During Proceedings and the issue of scheduling the summary hearing were referred to me. I issued Interim Decision 2012 HRTO 289. In regard to the Requests for Order During Proceedings from Wawanesa and Aviva, I concluded as follows, at paragraphs 8 – 13:
The Application sets out a very detailed account of the applicant’s experience during the period he was employed by LifeMark. His job principally involved reviewing applications for disability insurance submitted to insurance companies, including Wawanesa and Aviva.
The Application does not include an allegation of any discrimination on the part of Wawanesa or Aviva. The Application indicates that they were named because they ought to have known that LifeMark was discriminating against the applicant and should have asked LifeMark to stop the discrimination. The alleged discrimination that the applicant feels the insurance companies should have been aware of consisted of a requirement by LifeMark that the applicant indicate on his reports that he received his medical degree in the Dominican Republic. The applicant does not suggest that this requirement was in any way imposed or requested by the insurance companies. He appears to suggest that the insurance companies should have objected to the requirement and that a failure to object was discriminatory.
The Tribunal does not have a general power to remedy claims of unfair treatment, abuse or harassment that is not linked to a ground listed in the Code. Rather, the Tribunal bases its jurisdiction on the provisions of the Code, and specifically, the prohibited grounds of discrimination covered by the Code.
9Rule 13.1 of the Tribunal’s Rules of Procedure provides as follows:
13.1 The Tribunal may, on its own initiative or at the request of a Respondent, filed under Rule 19, dismiss part or all of an Application that is outside the jurisdiction of the Tribunal.
10In this case, the insurance company respondents have each filed a Request for Order During Proceeding asking the Tribunal to dismiss the Application as against them. The applicant had no employment or contractual relationship with the insurance companies and there is no suggestion that they either required or requested that the applicant indicate where he received his medical degree. For these reasons, even if the requirement imposed by LifeMark was discriminatory, there are no allegations against the insurance companies that raise prohibited grounds of discrimination covered by the Code for which the insurance companies could be liable.
11Given that there are no allegations made against the insurance companies that raised prohibited grounds of discrimination covered by the Code, the Tribunal does not have jurisdiction to deal with the applicant’s complaints about the insurance companies and the Application as against Wawanesa and Aviva is dismissed.
12The Interim Decision was clear that the Application as against LifeMark and the personal respondents was not dismissed and that the summary hearing respecting the allegations about them would proceed, subject to scheduling of the summary hearing and the applicant’s participation. In regard to the scheduling of the summary hearing, the applicant was directed to provide current contact information with confirmation that he would be available to participate in a summary hearing. He was directed to provide dates that he would be available in April and May 2012. In the alternative, he was advised that he could waive his right to an oral hearing and have the summary hearing determined on the basis of written submissions.
The Applicant’s Request for Reconsideration
13On March 9, 2012, the applicant filed a Request for Reconsideration (“the Request”), together with a 60 page submission in support of the Request. Unfortunately, due to an administrative error, there has been a delay in dealing with the Request.
14The submission takes issue with several matters, some of which, including amendments to the Code which the applicant proposes and complaints about the Human Rights Legal Support Centre, are not matters that the Tribunal has jurisdiction to deal with and I will not address them in this Reconsideration Decision.
15In the Request, the applicant sets out a significant number of complaints and allegations about the Tribunal including:
- The request for adjournment was not dealt with fairly because the applicant was not properly consulted.
- The Case Assessment Direction that directed a summary hearing demonstrated bias because it indicated there is no reasonable prospect that the Application could succeed. This, in turn, would prejudice the adjudicator assigned to hear and decide the summary hearing.
- The applicant did not have an opportunity for an oral hearing to present his allegations against Wawanesa and Aviva.
- The Interim Decision was wrong in concluding that the Application includes no allegations against the insurance companies that raise prohibited grounds of discrimination covered by the Code and that the Tribunal does not have jurisdiction to deal with the applicant’s complaints about the insurance companies.
- The Request cites 586 Decisions of the Tribunal and various court decisions as well. It does not explain how these are relevant to the issues raised in the Request.
- The Request appears to suggest that the applicant wants an independent investigation of the Tribunal. The Request indicates that the applicant believes that the Tribunal will not fairly consider the Application and asks the Tribunal to “provide another independent form of adjudication of my [the applicant’s] claims.”
Conclusions
16It is important to keep in mind that the only issue that the Tribunal has so far determined is that the Code does not cover the applicant’s allegations about the two insurance companies, Wawanesa and Aviva. The Tribunal has not reached a conclusion about the applicant’s allegations against LifeMark and the personal respondents. The Tribunal has directed that a summary hearing be held in respect of those allegations. This does not mean that the Application will be dismissed on the grounds that there is no reasonable prospect that the Application can succeed. It only means that it is appropriate to determine if there is no reasonable prospect of success before proceeding with the Application. The Tribunal’s authority to hold a summary hearing is set out in Rule 19A of the Tribunal’s Rules of Procedure and, as noted in the Interim Decision, the rationale for a summary hearing was explained in Dabic v. Windsor Police Service, 2010 HRTO 1994.
17The Request references section 43(2) of the Code, which provides that “an application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules.”
18The applicant argues that he had a right to make oral submissions on the question of whether the Application as against the two insurance companies should be dismissed because the allegations against them were not matters that are covered by the Code.
19Section 43(2) gives the parties the right to make oral submissions in regard to “an application that is within the jurisdiction of the Tribunal.” The parties do not have a right to make oral submissions in regard to an application that is not within the jurisdiction of the Tribunal. In this case, the Interim Decision concluded that the application as against the two insurance companies was not a matter within the jurisdiction of the Tribunal because the allegations against the insurance companies were not matters covered by the Code. The applicant did, however, have an opportunity to make written submissions to the Tribunal about whether the allegations as against the insurance companies were within the jurisdiction of the Tribunal.
20The fact that the Tribunal makes a decision that a party does not agree with does not establish bias on the part of the Tribunal or a Tribunal decision maker.
21The legal principles to be applied to reasonable apprehension of bias were set out by de Grandpré J. in Committee for Justice and Liberty et al. v. National Energy Board et al., 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.
22While the applicant does not agree with the conclusion of the Interim Decision, he has provided no other basis to support an allegation of bias or a reasonable apprehension of bias on the part of the Tribunal or any Tribunal decision maker. The fact that a party does not agree with a decision of the Tribunal does not establish bias.
23The applicant has requested that the Tribunal appoint an “independent form of adjudication.” The Tribunal does not have power to appoint a form of adjudication other than the form of adjudication provided by the Tribunal. Section 16 of the Public Officers Act, RSO 1990, c P.45 does have a provision for appointment of a “disinterested person” in certain circumstances. However, this provision has rarely been used in Ontario’s administrative justice system and is not a provision over which this Tribunal has jurisdiction: Jogendra v. Human Rights Tribunal of Ontario, 2011 HRTO 322, at paragraphs 91-104.
The Reconsideration Request
24Under 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.
25The 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.
26Apart from the fact that the applicant does not agree with the finding in the Interim Decision that the allegations against the insurance companies are not matters over which this Tribunal has jurisdiction, the applicant has not identified any reason why the Interim Decision should be reconsidered.
27The applicant has alleged that the Tribunal is biased but has not provided a reason for this allegation apart from his disagreement with the Interim Decision and his disagreement with the fact that the Tribunal has directed that a summary hearing will be held. The applicant’s disagreement about these matters does not establish bias or a reasonable apprehension of bias.
28The applicant has asked for various remedies in respect of his allegation of a perception of bias. None of the remedies requested are within the Tribunal’s jurisdiction to award.
29The applicant has communicated with the Tribunal from an Ontario address and so it appears that he is now available to participate in a summary hearing. However, in light of the submissions that the applicant has made, it is appropriate that he confirm that he will participate in a summary hearing before a summary hearing is scheduled.
30Within 14 days of the date of this Reconsideration Decision, the applicant must confirm to the Tribunal and the respondents, in writing, that he will participate in a summary hearing to be held by teleconference. If the applicant does not provide this confirmation, he may be deemed to have abandoned the Application.
Decision
31The Request for Reconsideration is denied.
32Within 14 days of the date of this Reconsideration Decision, the applicant must confirm to the Tribunal and the respondents, in writing, that he will participate in a summary hearing to be held by teleconference. If the applicant does not provide this confirmation, he may be deemed to have abandoned the Application.
Dated at Toronto, this 31st day of July, 2012.
Signed by
Brian Cook Vice-chair