Vincent Latronico v. York Region District School Board, 2012 HRTO 637

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vincent Latronico

Applicant

• and-

York Region District School Board, David Lutz, Dan Hunter and Isgani Paz

Respondents

RECONSIDERATION DECISION

Adjudicator: David A. Wright

Decision Date: March 27, 2012

Citation: 2012 HRTO 637

Indexed as: Latronico v. York Region District School Board

WRITTEN SUBMISSIONS

Vincent Latronico, Applicant

Self-represented

1This Decision relates to the applicant’s Request for Reconsideration of the Tribunal’s decisions in this matter. The Application, filed under s. 53 of the Human Rights Code, R.S.O. 1990, c. H.19, was dismissed. The Tribunal made a series of prior previous Decisions, some of which dismissed certain allegations. The Tribunal’s decisions are reported as follows: 2009 HRTO 1605, 2009 HRTO 1803, 2009 HRTO 1985, 2010 HRTO 1000, 2010 HRTO 2497, 2011 HRTO 985, 2011 HRTO 1268, and 2011 HRTO 2012.

2The applicant has made extensive submissions focused on his contentions that there was a reasonable apprehension of bias, and that there was significant injustice in dismissing the Application. I recognize the applicant’s sincerely held view that he did not have a fair or impartial hearing. However, having carefully reviewed the applicant’s submissions and the Decisions the applicant seeks to have overturned, I have concluded that there was no reasonable apprehension of bias nor is there any other reason that reconsideration should be granted. My reasons for this determination follow.

3The relevant provisions of the Rules of Procedure for Transitional Applications are as follows:

25.5 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.

25.7.1 Where a Request for Reconsideration has been determined, the Tribunal will not consider a subsequent Request for Reconsideration of the same decision, absent exceptional circumstances. The Tribunal need not give reasons for a decision not to consider a subsequent Request.

4To the extent that the applicant’s Request relates to decisions that have already been the subject of reconsideration, Rule 25.7.1 applies. Given my ultimate conclusion that there is no basis for reconsideration in any event, I will not address the Rule 25.7.1 test separately from that under Rule 25.5.

5The applicant’s first set of concerns relates to impartiality. The applicant alleges that there was a reasonable apprehension that the adjudicator was biased. First, the applicant reiterates his allegations that the adjudicator had a relationship with respondent counsel that disqualified her, dealt with in 2010 HRTO 2497. The adjudicator:

…briefly met counsel for the respondent York Region and his family in August 2004 while moving my son into his dormitory at university. Counsel’s sister was also a student at that university. Although counsel and my son both attended the same high school in Toronto I do not know if they attended at the same time and this was my first meeting with counsel and his family. I had not seen or spoken to him again before the hearing and have only seen his sister and his mother on a few occasions although I did accept his mother’s friend request on FaceBook. (para. 5)

6Based in part on research conducted on the internet, the applicant makes various other allegations about the adjudicator’s family, personal life, and decisions as an adjudicator that he suggests create a reasonable apprehension of bias. He relies, among other things, on the fact that the adjudicator was from the same ethnic group as some witnesses, the similarity of the applicant’s mother’s maiden name to that of one of the witnesses, and the number of cases that she has allowed as opposed to dismissed.

7None of these factors create a reasonable apprehension of bias as defined in the law. The legal principles to be applied are well-established. De Grandpré J. wrote in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at p. 394 that:

. . . 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.

8The Tribunal has a Code of Professional and Ethical Responsibilities (“Code of Responsibilities”) for its members, which is posted on its web site at www.hrto.ca. Sections 17 and 18 read as follows:

17. A member shall not mediate or adjudicate in any proceeding, or participate in Tribunal discussions with respect to any matter, if s/he believes that a reasonable person could believe that his/her impartiality may be affected by a personal interest or by a relationship with one of the parties, a witness, or a representative.

18. A member will not normally be eligible to conduct a mediation or adjudication involving a party or representative with whom s/he was formerly in a significant professional relationship until a period of one year has elapsed from the termination of the relationship.

9As noted by the Supreme Court of Canada in Wewaykum Indian Band v. Canada, 2003 SCC 45 at para. 57, impartiality is the fundamental qualification for a judge, and this, of course, is true for Tribunal adjudicators. Impartiality is not an absence of prior experience with the issues in question, but rather means having an open mind which is open to persuasion (Wewaykum, supra, at para. 58). There is a presumption of impartiality and the onus is on the person seeking disqualification to establish a reasonable apprehension of bias.

10It sometimes happens that an adjudicator may have met a lawyer for one of the parties prior to the hearing in a professional or social setting. The Tribunal’s Code of Conduct and the case law make clear that having even a significant professional relationship with a lawyer for a party in the past does not in and of itself create a bias, and this shows that the types of passing relationships the applicant talks about do not do so either: Goodridge v. Toronto Police Services Board, 2009 HRTO 94; Guilmoutdinov v. Ontario College of Teachers, 2009 HRTO 2130. Having met a lawyer in a social setting on one occasion does not displace the presumption of impartiality and establish a reasonable apprehension of bias, and nor does the nature of the adjudicator’s acquaintance with the lawyer’s mother. None of the other factors or tangential connections mentioned by the applicant establish a lack of impartiality either. In my view, the analysis in the Interim Decision regarding the allegations of bias was correct, and none of the additional factors the applicant points to establish a reasonable apprehension of bias as defined in law. There is no basis for the applicant’s assertion that the adjudicator did not make a decision based on the evidence she heard or that a reasonable person would conclude this was the case.

11The applicant also takes issue with the factual conclusions and legal analysis in the Decision. The Tribunal’s jurisprudence is clear that a Request for Reconsideration is not an appeal and is granted only in limited circumstances. There must be more than disagreement with a decision or an alleged error to find that the conditions in Rule 25.5 have been reached. As the Tribunal stated in Sigrist and Carson v. Toronto District School Board, 2008 HRTO 34, at paras. 56-57:

As is evident from the Rules and made explicit in Practice Direction #4, reconsideration is not an appeal. It is not an opportunity to re-argue a case. Once the parties to a case 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.

Secondly, assertions of a “conflict” must be analyzed with care and have due regard to the realities and nature of decision-making. Even where there is well-established jurisprudence or procedures, each decision on apparently similar issues is made within its own factual, legislative and policy context. A finding that there is a “conflict” can only be made taking into consideration the full context of the decisions.

12Having reviewed the applicant’s submissions and the Decisions in question, there is no basis to find that the Decision should be reconsidered. The decisions were primarily factual and depended on credibility and interpretation of the relevant events. The conclusions are reasonable and in accordance with the relevant legal principles, in my view, and there is no basis to overturn them on reconsideration.

13Accordingly, the Request for Reconsideration is dismissed.