D.V. v. Georgian Bay Secondary School Association, 2013 HRTO 1718

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

D.V. by her Litigation Guardian D.S.J.

Applicant

-and-

Georgian Bay Secondary School Association and

Ontario Federation of School Athletic Associations

Respondents

RECONSIDERATION DECISION

Adjudicator: Naomi Overend

Date: October 10, 2013

Citation: 2013 HRTO 1718

Indexed as: D.V. v. Georgian Bay Secondary School Association

WRITTEN SUBMISSIONS

D.V., Applicant

D.S.J., Litigation Guardian

Introduction

1On August 19, 2013, the Tribunal issued its Interim Decision, 2013 HRTO 1420, dismissing the applicant’s request for an interim remedy. In that Interim Decision, I found that there is serious reason to question whether the Tribunal has jurisdiction over the only ground (age) upon which the applicant appeared to have arguably experienced differential treatment. That is, the Tribunal’s does not have jurisdiction with respect to the ground of age unless the applicant successfully mounts a Charter challenge to the definition of age in the Code.

2For that reason, I found that it was an inappropriate case in which to exercise my discretion to grant the interim remedy sought by the applicant.

THE REQUEST FOR RECONSIDERATION

3The applicant submitted a Request for Reconsideration on the basis that the Decision of the Tribunal is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; and that other factors exist which outweigh the finality of Tribunal decisions.

DECISION

4Under 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.

5The Tribunal has issued Rules of Procedure, which govern 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). Rule 26 states in part:

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.

6The 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.

7As 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.

8The first thing I would note is that Rule 26.1 allows parties to seek reconsideration of final decisions of the Tribunal. An interim decision denying an interim remedy is not a final decision. The applicant argues that this determination is, for all intents, a final decision because there will be “no remedy” available to her after the hearing. In fact, the applicant seeks a number of remedies in section 10 of her Application, which would still be available to her.

9However, I appreciate that the primary remedy sought by the applicant is the ability to play on the team sports of her choice before April 2014, and that it is unlikely that this matter will be adjudicated in time to meaningfully allow her to do this. On the other hand, if the Tribunal grants the interim remedy sought and a determination is not made prior to the expiry of the April date, then the applicant will have been granted her primary remedy without the necessity of proving her case.

10The applicant relies on the Tribunal’s determination in Arzem v. Ontario (Community and Social Services), 2006 HRTO 17, in support of her argument that the Interim Decision is contrary to established case law. In that case, the applicants’ constitutional challenge of the definition of age (to exclude those under 18) was successful, and the Tribunal issued a declaration of invalidity for the purposes of that proceeding. I would note, however, that since that time, the Tribunal has held that the decision is not binding on it and has declined to rely on the reasoning in that case. See Wilson v. Guelph Minor Football Association, 2009 HRTO 949, and D.F. v. University of Ottawa, 2011 HRTO 1318.

11I see no basis for exercising my discretion to reconsider my earlier Interim Decision. As I noted in that earlier determination, the applicant’s arguments with respect to the grounds other than age do not appear to have merit; her argument with respect to age is predicated on her successfully challenging the definition of age in the Code. It would be inappropriate in these circumstances to grant an interim remedy where the Tribunal appears not to have jurisdiction to address the only issue on which the applicant appears to have any possible chance of success.

order

12The Request for Reconsideration is, accordingly, dismissed.