Ross v. Simcoe County District School Board, 2012 HRTO 1960

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Ross Applicant

-and-

Simcoe County District School Board Respondent

RECONSIDERATION DECISION

Adjudicator: Ena Chadha Date: October 16, 2012 Citation: 2012 HRTO 1960 Indexed as: Ross v. Simcoe County District School Board

WRITTEN SUBMISSIONS

John Ross, Applicant ) Self-represented

INTRODUCTION

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on February 8, 2012, alleging discrimination and reprisal with respect to employment and membership in a vocational association because of creed. In response to Question 7, the applicant indicated that the date of the last event was May 10, 2008.

2By way of Decision, 2012 HRTO 918, the Tribunal found that it did not have jurisdiction to process the Application because it was filed more than one year after the last incident of discrimination described in the Application and because the delay was not incurred in good faith. In addition to the jurisdictional issue of delay, the Tribunal also noted that it appeared that the events described in the Application may not be connected to the Code because the alleged incidents did not appear to be specific acts of discrimination within the meaning of the Code. While the applicant alleged discrimination because of creed, the applicant’s narrative did not specify any link between the impugned treatment and the ground of creed.

3This Reconsideration Decision addresses the applicant’s June 28, 2012 request for reconsideration of the Tribunal’s Decision dismissing his Application.

RECONSIDERATION

4Rule 26 of the Tribunal’s Rules of Procedure (“Rules”) provides that 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;

(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;

(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 and orders.

5The applicant filed this request asking the Tribunal to reconsider its Decision on the basis that 1.) there are new facts and evidence; 2.) he did not receive proper notice; and 3.) the Decision is in conflict with established case law.

ANALYSIS

6I begin with the above-noted third basis for the applicant’s request for reconsideration. Having carefully reviewed the applicant’s submissions, I am unable to discern any line of argument offered by the applicant suggesting how the Decision is in conflict with established jurisprudence. At its highest, it may be that the applicant believes my finding that the Application did not relate to the ground of “creed” is incorrect. The applicant alleged the respondent’s administrative employees and his union’s executive discriminated against his “creed” by mocking his belief in fair employment protocols and a democratic process with respect to union’s elections.

7While the applicant argues that his “beliefs” with respect to such employment procedures and election processes is a matter of his “creed”, he did not provide any authority for the proposition that “creed” includes such concerns of unfair protocols or lack of democratic process. The Tribunal does not have the power to address allegations of general unfairness. It can only address allegations of discrimination based on the grounds set out in the Code.

8Further, it has long been held in Ontario human rights case law that the concept of “creed” as interpreted under the Code does not include one’s political point of view. The Divisional Court has stated that “mere political opinion is not within the meaning of ‘creed’” Jazairi v. Ontario (Human Rights Comm.), 1997 CanLII 12445 (ON SC), at para. 41. While the Ontario Court of Appeal, in upholding the decision in Jazairi, above, left open the question identified by the Divisional Court of whether or not a “political perspective, such as communism, that is made up of a recognizable cohesive belief system or structure” might constitute a “creed”, such a claim was not before the Tribunal in this case. The applicant’s allegations are in the nature of personal opinions rather than anything that might be characterized as a “recognizable cohesive belief system or structure.” (See Jazairi v. Ontario Human Rights Commission, 1999 CanLII 3744 (ON CA), at para. 27.) As such, I am unable to find that the Decision is in conflict with established case law.

9With respect to the applicant’s second argument that he did not receive proper notice, it appears that the applicant is troubled by the fact that, although the Decision identified the applicant as “self-represented”, the Decision was sent to his counsel and not received by him until approximately three weeks later.

10The Decision was forwarded to the applicant’s counsel because the applicant’s counsel is the person listed in the Application as the individual authorized to act for the applicant, which includes delivery of documents. In accordance with Rule 1.21.1, when a party has a representative, the Tribunal and other parties must deliver documents to the party’s representative.

11The applicant was identified as “self-represented” in the Decision’s Written Submission’s page, which is the page that lists the names of the individuals who have filed written submissions. The Tribunal noted the applicant as “self-represented” for the purposes of the Written Submissions page because the applicant filed written submissions in response to the Tribunal’s Notice of Intent to Dismiss on his own behalf. Since no written submissions were filed by his counsel and the applicant wrote directly to the Tribunal, it was on this basis that the applicant was identified as “self-represented”.

12While there may have been some confusion as to whether or not the applicant should have received a copy of the Decision directly from the Tribunal, as he had filed his own submissions, as opposed to the Decision being forwarded to his counsel, I find that this does not constitute a basis for reconsideration of the decision. The applicant does not appear to have suffered any prejudice as a result of this confusion and the Tribunal fully considered the applicant’s reconsideration request notwithstanding the fact that the 30-day deadline for filing the reconsideration had elapsed.

13Finally, the applicant argues that the Decision should be reconsidered because the medical evidence establishes that he suffered from mental health issues, which is demonstrative of the fact that the delay in his case was in good faith. In addition to filing various medical reports with his reconsideration request, the applicant points out that his Application materials included two medical notes that substantiated his health conditions that the Tribunal omitted to address in its Decision.

14The applicant is correct in highlighting two medical notes from his physician and chiropractor which confirm that the applicant was treated for stress and depression for some of the duration overlapping with the Code’s limitation period.

15As stated in the Decision, this Application was filed on February 8, 2012, almost four years after the last alleged event. As such, the events alleged in the Application are clearly outside the time period provided under the Code. The Tribunal has no power to relieve against the one-year time limit and does not have jurisdiction to determine an application in situations where the Tribunal is not satisfied that the delay was incurred in good faith.

16In order to demonstrate good faith an applicant must show something more than simply an absence of bad faith: see Reid v. Ontario March of Dimes, 2009 HRTO 2207. In determining whether an applicant’s mental health concerns give rise to good faith, the Tribunal has held that a disability must directly impede the applicant’s ability to file an application. As stated in the Tribunal‘s decision in Dionne v. Toronto (City), 2011 HRTO 317, while the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code. See also for example Reid v. Ontario March of Dimes, above; Downer v. Little & Jarrett, 2010 HRTO 992, and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

17Based on the information that was before the Tribunal and that could not reasonably have been obtained earlier, the applicant has not demonstrated why he could not meet the Code deadline. Although the applicant may well have been living with mental health problems, the applicant has not established that he could not have pursued his rights within the timeline mandated by the Code. In fact, the documentary materials reveal that the applicant was actively pursuing his concerns through correspondence and communications with his employer, the union and his lawyer during the relevant period of time.

18The applicant’s submissions do not meet the fairly high onus the Tribunal requires to show that the delay in the filing of an Application was incurred in good faith pursuant to section 34(2) of the Code. The applicant does not offer new evidence or facts which could not reasonably have been obtained earlier, as required under Rule 26.5(a).

19In addition, I do not find the medical notes filed with the Application constitute persuasive evidence that the applicant’s condition was so debilitating that it prevented him from commencing an Application under the Code in a more timely fashion, particularly given the applicant’s pursuit of his concerns with his employer, the union and his lawyer. Accordingly, the Application filed over one year late does not satisfy the requirements of section 34(1) of the Code.

20In making his reconsideration request, I find that the applicant is reiterating arguments that he advanced in his submissions considered by the Tribunal in its Decision dismissing the Application, albeit in more detail, particularly in relation to his assertion that his medical condition contributed to his delay in filing the Application. As the Tribunal’s Practice Direction on Reconsideration states, that is not the purpose of reconsideration:

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.

21Accordingly, the request for reconsideration is denied.