Freitag v. Penetanguishene (Town), 2013 HRTO 1023

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Henry Freitag and Bill Ogilvie

Applicant

-and-

The Corporation of the Town of Penetanguishene

Respondent

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: June 6, 2013

Citation: 2013 HRTO 1023

Indexed as: Freitag v. Penetanguishene (Town)

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2013 HRTO 554 dated April 4, 2013, which dismissed 13 of these Applications as having no reasonable prospect of success and four others as either duplicative, not within this Tribunal’s jurisdiction, and/or as barred by s. 53(8) of the Code.

2On April 9, 2013, the applicants filed a Request for Reconsideration of the Tribunal’s Decision.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) provides as follows:

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.

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The 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 last amended May 2010).

5The 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.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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.

7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an Application 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.

8The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 of the Rules provides:

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.

9As a result, I need to determine whether the material filed by the applicants in support of their request for reconsideration satisfies any of the criteria set out in Rule 26.5. The applicants rely upon the criterion identified in Rule 26.5(c).

10In their Request for Reconsideration, the applicants state that I violated their fundamental rights and freedoms under section 7 of the Canadian Charter of Rights and Freedoms and Article 14 of the International Human Rights Code by denying them the due process of law. It is stated that the applicants were deprived of the right to question witnesses on which the respondent based its argument, and that I as the Vice-chair also failed to question the respondent’s witnesses. It is stated that I ignored references made by the applicants to the Charter, which is the supreme law of Canada, and that I was not interested in their Charter rights.

11In fact, in the Decision, I squarely addressed the applicants’ allegation that the process I had implemented for considering whether the 13 Applications had a reasonable prospect of success was in violation of section 7 of the Charter. As I stated (at paras. 26 to 28):

. . . on October 18, 2012, Mr. Freitag sent yet a further letter to the Tribunal alleging that he had been denied his fundamental rights under section 7 of the Charter, on the basis that he had not been permitted to question the witnesses of the respondent. I do not agree that the applicants have been denied any rights under section 7 of the Charter or as part of their common law right to procedural fairness. In any legal proceeding, at the end of the claimant’s case, a responding party is entitled to ask that the case be dismissed for failure to make out a prima facie case. If a claimant has not made out a prima facie case, then a responding party is not required to call any witnesses and the case is dismissed. In the courts, this is referred to as a motion for non-suit.

At this Tribunal, for reasons articulated in our caselaw, we have moved away from using the language of whether an applicant has made out a prima facie case to assessing whether an applicant has a reasonable prospect of success in establishing a violation of the Code. But this does not take away from an applicant the burden of bringing forward evidence to establish that his or her rights under the Code have been violated. In the instant case, questioning the respondent’s witnesses would not assist the applicants in explaining to me how they allege that their own personal rights under the Code were infringed by the Town in relation to the specific issues raised in the 13 Applications. I have expressed this to the applicants repeatedly.

Prior to the hearing, the applicants were required under this Tribunal’s Rules to file a list of all witnesses they intended to call to give evidence at the hearing and to provide a summary of each witness’ expected evidence. I reminded the applicants of this obligation in a CAD dated June 26, 2012 and the applicants provided their list of witnesses on July 5, 2012. Apart from the applicants themselves, the applicants indicated that they intended to call three additional witnesses, all of whom were Town officials. I addressed each of these three additional witnesses in my CAD dated August 7, 2012 . . . and set out why I did not believe that the evidence the applicants proposed to elicit from these individuals was helpful in addressing the issue of whether the applicants had a reasonable prospect of success in establishing that their rights under the Code had been infringed. If the applicants disagreed with me, they were free to indicate why in their written submissions. If the applicants wanted to call additional witnesses as part of their case in order to help establish that their rights under the Code had been infringed, they could have raised this as part of their written submissions and I would have considered whether to allow such further witnesses to be called, after having received any submissions from the respondent. But the applicants did not do any of this, and ignored this Tribunal’s direction for them to file written submissions on the issue of whether they have a reasonable prospect of success.

12It is not correct for the applicants to assert that the Decision considered arguments advanced by the respondent on the basis of evidence of respondent witnesses that the applicants had not been afforded the opportunity to question. As expressly stated at para. 11 of the Decision, I directed the respondent to make submissions regarding whether the applicants had established a reasonable prospect of successfully proving a violation of their rights under the Code, “based on the testimony of the applicants and the documents and materials in evidence before me at this stage of the hearing”. I specifically noted that, “while the respondent had submitted statements of the anticipated evidence of its proposed witnesses, I needed to be mindful that no respondent witnesses had yet testified before me and had not been subject to cross-examination”. As a result, as is evident in the Decision, I did not rely upon the evidence of any respondent witnesses in making my determination.

13As indicated in my Decision, I repeatedly advised the applicants that, if they believed that there was evidence to be elicited from the respondent’s proposed witnesses that would assist in establishing that they had a reasonable prospect of success in proving that their rights under the Code had been infringed, then they could indicate this in their written submissions and state what relevant evidence they expected to elicit from these witnesses: see paras. 17 to 19, 22 and 24. However, rather than doing so, the applicants simply failed to file any written submissions to support that they had a reasonable prospect of successfully proving that their rights under the Code had been infringed, despite repeated explanations regarding the nature of the submissions required and despite granting a significant extension of time for them to do so.

14Accordingly, as stated in the Decision, I do not agree that the applicants have been denied any rights under section 7 of the Charter. In their Request for Reconsideration, the applicants have not provided any jurisprudence interpreting section 7 of the Charter that is in conflict with the determination I reached in the Decision. Nor have the applicants provided any basis to support that the Decision was in conflict with established Tribunal procedure.

15With regard to the applicants’ reference to Article 14 of something called the “International Human Rights Code”, I am not aware of any such legal instrument and none was provided to me by the applicants. To the extent that this instrument is supposed to make reference to the “due process of law”, as indicated in the Request for Reconsideration, I certainly am aware that the 14th amendment to the United States Constitution guarantees that no state shall “deprive any person of life, liberty, or property, without due process of law”, but this provision has no application in Canada. Rather, the relevant governing provision in our Constitution is section 7 of the Charter, which guarantees that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.

16Finally, I note that nothing in the applicants’ Request for Reconsideration pertains to the Decision as it relates to the disposition of the preliminary issues arising from the remaining four Applications, as the preliminary issues raised in relation to those four Applications did not involve the calling or questioning of any witnesses by the parties.

17For all of the foregoing reasons, the applicants have failed to satisfy the criterion set out in Rule 26.5(c) and accordingly their Request for Reconsideration is denied.