Gregoire v. Ontario (Government Services), 2013 HRTO 1476

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Gregoire

Applicant

-and-

Her Majesty the Queen in right of Ontario (as represented by the Minister of Government Services), Kathleen Dillabough, Dennis Bedeau, Marsha Smith, Ontario Public Service Employees Union, Warren Thomas, Diane Boisvert, Sonia Boudreau Alison Dewar, Workwise Occupational Assessment Centre Inc., Ken Suddaby, Peter Judge and the Liberal Party of Ontario

Respondents

RECONSIDERATION DECISION

Adjudicator: Eric Whist

Date: August 29, 2013

Citation: 2013 HRTO 1476

Indexed as: Gregoire v. Ontario (Government Services)

WRITTEN SUBMISSIONS

John Gregoire, Applicant

Self-represented

INTRODUCTION

1On September 10, 2012, the applicant filed an Application alleging discrimination with respect to employment on the basis of ancestry, place of origin, ethnic origin, disability, creed, association with a person identified by a Code ground and reprisal.

2On March 27, 2013, the Tribunal held a summary hearing to consider the Application. On July 11, 2013, the Tribunal issued Decision 2013 HRTO 1218, (the “Decision”), dismissing the Application. On August 7, 2013, the applicant filed a Request for Reconsideration asking that the Tribunal reconsider its Decision. The applicant provided written submissions in support of his request.

3The applicant submits that the Decision did not duly consider the documents and submissions that he provided to the Tribunal and that the Decision was biased.

4Under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (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 relevant Tribunal Rule is Rule 26.5 which reads, in part, as follows:

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 and orders.

5The Tribunal has also issued a Practice Direction to provide guidance on how the Tribunal exercises its reconsideration powers (Practice Direction on Reconsideration). The Practice Direction states, in part, that:

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.

6The applicant submits that there are numerous instances that I, as the Tribunal member who considered his Application, did not either understand or appropriately assess the information he provided. He submits that during the course of the hearing I inappropriately favoured the respondents by allowing them to speak at length while at the same time rudely limiting his opportunities to present his case. The applicant submits that some of my actions and determinations are likely attributable to my bias, the applicant having determined by an internet search that I was appointed to my position on the Tribunal by a liberal government and as a consequence he submits I would be unprepared to find the actions of the named respondents to be discriminatory. He submits I am protecting the government who is paying my salary and an unfavourable decision could cause me to lose my job. He further surmises that I am a white Anglo Saxon person which may also account for why, in his opinion, I was insensitive to his allegations of discriminatory treatment.

DECISION

7It is evident from the applicant’s submissions that I either did not understand or did not appropriately assess the information that he provided at his hearing that he completely disagrees with the reasoning and results of my Decision. This is not grounds for reconsideration under Rule 26.5. As is evident from the Rules and made explicit in the Tribunal’s Practice Direction, reconsideration is not an appeal and it is not an opportunity to re-argue a case. Once the parties to a case have had the opportunity to present their 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 (see Sigrist v. Carson 2008 HRTO 34 at para. 56).

8I do not accept the contention that I treated the respondents more favourably during the course of the hearing or that I unduly limited the applicant’s opportunities to participate. I had before me the applicant’s Application and his extensive additional written submissions. I had limited information from the respondents given that they were not required to file Responses to the Application prior to the holding of a summary hearing. I found it necessary to hear at some length from the respondents in order to more fully understand their positions. The nature and extent of the applicant’s allegations and the number of named respondents and the number of respondent representatives participating in the hearing all contributed to the amount of time given to hearing from the respondents. I acknowledge that there were times that I indicated to the applicant that I would wait to hear his views but this was in order to facilitate the orderly presentation of information and submissions. I do not find that my actions were at odds with the Tribunal’s commitment to hold just, fair and expeditious proceedings.

9The applicant’s contention that one of the reasons I dismissed his Application is because I was appointed to the Tribunal by a Liberal government and I am likely a White Anglo Saxon person is without merit. This is clearly an allegation of bias. The legal principles to be applied to allegations of bias are well-established. De Grandpré J. wrote in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 SCR 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.

10The test for reasonable apprehension of bias is a high standard. In my view a reasonable person considering the circumstances of this case would not find the fact that I may have been appointed by a “liberal government” would lead me to dismiss this Application in order to protect the government’s interests. A reasonable person would not, in my view, find that my colour and/or ethnicity would render me unable to fairly consider allegations of discriminatory treatment in my capacity as member of the Tribunal.

11As is evident from the Tribunal’s Rules and Practice Direction reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. I find that the applicant has not met the burden of establishing any of the threshold criteria set out in Rule 26(5) justify reconsideration. Though I understand that the applicant is dissatisfied with the Decision he has provided no persuasive reasons for why the Decision should be reconsidered.

12For all these reasons, the applicant’s request is denied.