HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
E.A and K.A. by their next friend M.A.
Applicants
-and-
Simcoe-Muskoka Catholic District School Board
Respondent
RECONSIDERATION DECISION
Adjudicator: David Muir
Indexed as: E.A. v. Simcoe-Muskoka Catholic District School Board
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of race, colour, ancestry, place of origin and ethnic origin.
2The applicants alleged that the respondent school board had discriminated against them by failing to provide E.A. with adequate educational support and treating him differently from other pupils, by calling the Children’s Aid Society (the “CAS”) to investigate the applicants’ family on two occasions and by allowing the respondent’s staff to insult both applicants with racial slurs. The applicants maintain that the respondent’s treatment of them caused their parents to remove them from the school and to move them to live with their grandparents in another town. They maintain that the respondent is the cause of this separation from their parents.
3A hearing was scheduled for September 4, 2013 and the Tribunal’s Notice of Confirmation of Hearing has set out timelines for the parties to exchange arguably relevant documents and for the exchange and filing with the Tribunal of documents and witness statements that they intended to rely on at the hearing. The respondent delivered its arguably relevant documents to the applicants in a timely way, but the applicant did not send theirs to the respondent.
4The respondent made two requests. One was for the Tribunal to order the applicants to produce all of their arguably relevant documents, including the applicants’ Ontario School Records (“OSR”); their CAS file and any correspondence from the CAS in the period January 2010 to the present; and a kinship agreement (if it exists) providing for the applicants’ residence with their grandparents.
5The second request was for the applicant to provide particulars which would shed light on a number of the applicants’ allegations. These include when and with whom the applicants’ mother met in her first encounter with the respondent’s school staff; specifics of the acts of discrimination alleged by the applicants, including the names of staff, dates of the alleged acts and the particulars of those acts; any evidence that would support the applicants’ claims of the impact the alleged discrimination has had upon them; and any evidence of the applicants’ academic progress since leaving the respondent’s school.
6A case management conference call was scheduled for July 26, 2013 to address these requests. The respondent participated but the applicants’ next friend did not, despite having been given notice of the call. After allowing the applicants a grace period of half an hour to participate, the call proceeded in their absence.
7Both requests of the respondent were granted in 2013 HRTO 1335 and further Directions were made as follows:
The applicants, through their next friend, are directed to indicate in writing to the Tribunal and the respondent within five days of this Interim Decision whether they consent to the disclosure of the OSRs. If they do not respond, their Application may be dismissed as abandoned. If they do not consent to disclosure, they must set out in writing why they do not consent and why they believe their Application should not be dismissed as an abuse of process.
If the applicants consent to the disclosure of the OSRs, then these documents must be provided to the respondent by August 9, 2013.
The applicants must also provide the respondent with the following documents by August 9, 2013: those parts of the CAS file and any related correspondence that deal with the two incidents referred to in paragraph 10 above; the kinship agreement referred to in paragraph 11 above; and any other arguably relevant documents. If they do not provide these documents to the respondent by this deadline their Application may be dismissed as abandoned.
The applicants are to provide to the respondent and file with the Tribunal their witness list, witness statements, and copies of documents they intend to rely upon at the hearing by August 12, 2013. If they do not do so by this deadline, their Application may be dismissed as abandoned.
The respondent is directed to provide to the applicants and file with the Tribunal its witness list, witness statements, and copies of documents it intends to rely upon at the hearing by August 19, 2013. If the respondent does not do so by this deadline, the Tribunal may take any or all of the steps in Rule 5, including not permitting the respondent to call any witnesses at the hearing.
8The applicants did not comply with any of these Directions above and did not communicated with the Tribunal in any way. In all of the circumstances described above the Application was dismissed as abandoned in 2013 HRTO 1453 issued on August 26, 2013.
9The applicant has filed a Request for Reconsideration (Form 26). In his Request the applicant states that he was delayed in getting the paperwork and has still not received all of the paperwork from the respondent and the CAS. The applicant then makes a number of requests and makes new allegations about the respondent. The applicant does not address the issues above and provides no explanation for his failure to comply with the Tribunal’s Directions or to communicate with it in any way until after the Application had been dismissed.
DECISION
10Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.
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.
11The 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 amended June 2008). Most relevant to this Decision is Rule 26 which states:
26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision
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.
12The 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.
13As is evident from the above, 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. 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.
14I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration. The applicant’s submission does not address any of the factors outlined above in Rule 26.5 and he has provided no explanation for his failure to respond to the Tribunal’s Directions above or to communicate with the Tribunal in any way indicating his interest in proceeding further with the Application. In my view it would be an inappropriate exercise of the Tribunal’s discretion to grant the Request in these circumstances
15The Request is denied.
Dated at Toronto, this 30^th^ day of September, 2013.
“Signed by”
David Muir
Vice-chair