Traversy v. Mississauga (City), 2013 HRTO 1356

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Norman Traversy

Applicant

-and-

The City of Mississauga, Casey Dockendorff and Jeffrey Murray

Respondents

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott

Date: August 7, 2013

Citation: 2013 HRTO 1356

Indexed as: Traversy v. Mississauga (City)

WRITTEN SUBMISSIONS

Norman Traversy, Applicant

Self-represented

Introduction

1The applicant filed this Application on April 27, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment and membership in a vocational association on the basis of disability, sexual orientation and reprisal.

2On August 20, 2012, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) indicating that it appeared that the Application is outside of the Tribunal’s jurisdiction because the complaint was against opposing legal counsel and the Tribunal has held the relationship between a lawyer and an opposing party is not covered by the Code.

3By Case Assessment Direction dated November 22, 2012 (the “CAD”), the Tribunal determined that a summary hearing would be held to hear the parties’ submissions with respect to the issue of jurisdiction, absolute privilege and to provide the applicant with an opportunity to explain the nature of his allegations and how he intends to prove the connection between the alleged events and the Code’s protections.

4The summary hearing was held by teleconference on March 27, 2013. In accordance with the Tribunal’s established practice, no evidence was called during the summary hearing. The summary hearing was confined to hearing the parties’ submissions on the legal question of whether the allegations set out in the Application were covered by the Code.

5On May 16, 2013, I issued my decision on the summary hearing, 2013 HRTO 835 (the “Decision”). I dismissed the Application because it involved a complaint against opposing counsel. I held the Tribunal’s jurisdiction is clear that the relationship between a lawyer and an opposing party does not fall within a social area of the Code and as such, is outside of the Tribunal’s jurisdiction.

6On June 17, 2013, the applicant sought reconsideration of the Tribunal’s Decision as provided for in s. 45.7 of the Code. The applicant submits the summary hearing was unfair because he was denied a full and fair opportunity to make his submissions.

LEGISLATIVE PROVISIONS

7Sections 45.7 and 45.8 of the Code provide the Tribunal with authority to reconsider its decisions while confirming the finality of the Tribunal’s decisions:

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.

45.8 Subject to section 45.7 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.

8Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration as well as a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers (Practice Direction #4 Reconsideration).

9Relevant to this Decision are the following Rules:

26.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision.

26.3. A Request for Reconsideration must include:

(a) reasons for the request, including the basis upon which the Tribunal is asked to grant the request for reconsideration;

(b) submissions in support of the request; and

(c) the remedy or relief sought.

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;

(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.

10Practice Direction #4 states, in part:

Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO 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.

11The 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 26.5 have been met. As the Tribunal stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, at para. 56:

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.

ANALYSIS

12The applicant submits the summary hearing was unfair for the following reasons:

a. I commenced the hearing by greeting the representative of the respondent and counsel for the respondents by their first names and did not greet or acknowledge the applicant;

b. I refused to allow the applicant to read from his prepared notes;

c. I interrupted the applicant and his representative during their submissions and failed to stop similar interruptions by respondents’ counsel;

d. I directed the applicant’s representative to answer one question with a yes or no answer;

e. The hearing lasted one hour and was scheduled for three hours. This prevented the applicant and his representative from making further argument.

13I do not agree with the applicant’s factual assertions about how the summary hearing unfolded. I did not, for example, address respondents’ counsel and the respondents’ representative by their first names. With respect to the allegation that I prevented the applicant from reading from prepared notes, I believe this refers to the written submissions the applicant had filed prior to the summary hearing. Those submissions had been reviewed by me and there was no need for the applicant to read from those submissions as I had them in written form.

14I disagree that the applicant was not given a full opportunity to make his submissions on the summary hearing. The issue on the summary hearing was a narrow one: whether the applicant’s complaints about opposing counsel fit within a social ground under the Code. Both the applicant and his representative were given an opportunity to make submissions. They were also both afforded a right to reply to the submissions of the respondents. In the normal course when a party is represented, the representative makes submissions on behalf of a party. In this case, both the applicant and his representative were permitted to make submissions during the summary hearing.

15I do no recollect cutting off the applicant or his representative. There is no question that the hearing was focused on the narrow legal issue before the Tribunal. I recall on one occasion asking the applicant’s representative to answer the question that had been asked because I felt that he was not being responsive. This was an appropriate direction at the time.

16Although the applicant asserts there was more that he and his representative wanted to say, there is no indication in the Request for Reconsideration what that would have been. The applicant filed detailed written submissions on the summary hearing including documentary attachments and case law. The applicant and his representative made their submissions during the summary hearing. At no time did the applicant or his representative request an opportunity to make further submissions. The summary hearing took one hour because the legal issue before me was a very narrow one.

17In this case, the applicant has not identified compelling and extraordinary circumstances which might cause the Tribunal to exercise its discretion to reconsider a decision.

18The Request for Reconsideration is dismissed.