Stennett v. Ontario (Community and Social Services), 2013 HRTO 2090

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Danielle Stennett Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community and Social Services Respondent

RECONSIDERATION DECISION

Adjudicator: Ruth Carey Date: December 17, 2013 Citation: 2013 HRTO 2090 Indexed as: Stennett v. Ontario (Community and Social Services)

WRITTEN SUBMISSIONS

Danielle Stennett, Applicant John Done, Counsel

1The applicant seeks reconsideration of the Tribunal’s Decision, 2013 HRTO 1760. That Decision dismisses the Application for lack of jurisdiction because it is out of time pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and the Tribunal is not satisfied the delay was incurred in good faith.

2The reasons for the Request for Reconsideration (“the Request”) stated on its face are: there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier (see Rule 26.5(a) of the Tribunal’s Rules of Procedure); 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 (see Rule 26.5(c)); and other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions (see Rule 26.5(d)).

3The Request is denied for the reasons stated below.

New Facts or Evidence

4The only statement of new facts or evidence contained in the Request is an allegation that the state of the law with respect to the jurisdiction of the Social Benefits Tribunal changed on June 29, 2012 as a result of the release of the Court of Appeal’s decision in Walsh v. Ontario (Disability Support Program), 2012 ONCA 463. This is not something that was unknown or reasonably unattainable by the applicant’s representative at the time the applicant filed her submissions on the delay issue with the Tribunal on August 21, 2013. Therefore, it cannot be said that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

5That being said, I am also of the view that if the applicant had included the allegation that the state of law changed on June 29, 2012, in her original submissions on the delay issue that would not have changed the conclusion that the delay was not incurred in good faith. I say this because Walsh v. Ontario (Disability Support Program), above, did not in fact change the law as alleged in the Request. Rather, it was an appeal of the Divisional Court’s decision in Director, ODSP v. Walsh, 2011 ONSC 1526, released on March 9, 2011, which also stated the Social Benefits Tribunal did not have jurisdiction to hear the appeal in question. That decision was binding on the Social Benefits Tribunal at that point in time. The Court of Appeal’s decision confirmed the result from the Divisional Court but not all of its reasoning. I would further observe that the Application itself states that on January 25, 2012, a member of the Social Benefits Tribunal told the applicant it lacked jurisdiction to hear an appeal from a decision of the ODSP Director to refuse to extend the time for requesting reconsideration.

6In the context of a decision under s. 34(2) of the Code an applicant must provide a reasonable explanation for why she did not pursue her Code rights in a timely manner. Here, the Divisional Court’s decision in Director, ODSP v. Walsh, above, of March 9, 2011, indicated the Social Benefits Tribunal would not take jurisdiction over the applicant’s appeals and on January 25, 2012, the applicant was explicitly told by the Social Benefits Tribunal that it lacked jurisdiction to hear them. But the applicant’s submissions offer no explanation as to why she delayed in filing this Application after either of those dates.

7As a result, the additional allegation that the law changed on June 29, 2012, would not have affected the finding in the Decision that the Tribunal is not satisfied the delay was incurred in good faith.

Conflict with Jurisprudence or Rule

8The Request cites no jurisprudence or Tribunal Procedure that conflicts with the Decision and I am not aware of any that do.

Factors that Outweigh Public Interest in Finality

9The Request also does not identify any factors the Tribunal might consider in determining the question of whether in its opinion those factors outweigh the public interest in the finality of Tribunal decisions.

DECISION

10The applicant’s Request for Reconsideration is denied.