HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Y.D by her Litigation Guardian S.D.
Applicant
-and-
The Office of the Children’s Lawyer and Krystal Dorion
Respondents
RECONSIDERATION DECISION
Adjudicator: Geneviève Debané
Indexed as: Y.D. v. Office of the Children’s Lawyer
WRITTEN SUBMISSIONS
Y.D by her Litigation Guardian S.D., Applicant
Self-represented
1On March 17, 2014 the Tribunal issued its Decision in this Application, 2014 HRTO 381 dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.
2The Tribunal’s Decision found that S.D. could not act as litigation guardian for his daughter Y.D because he was not indifferent to the outcome of the Application and that he was in a conflict of interest.
THE REQUEST FOR RECONSIDERATION
3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:
a. That in fact the applicant filed his own application with the Tribunal on October 22, 2013;
b. The applicant raises a number of other legal arguments which he says were not addressed in the Decision; and
c. That I should not deal with this matter and that it should be assigned to a member who has not had “dealings with the respondent in the past or a law firm she worked for.”
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 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 April 2014). 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.
6The Tribunal’s Practice Direction on Reconsideration begins with the following statements:
Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.
The rules for reconsideration are found in Rule 26 of the Rules of Procedure. A request for reconsideration will only be granted if the request meets one of the requirements in Rule 26.5.
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. 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.
DECISION
8The Notice of Application which was delivered to the parties on March 21, 2013 in this matter indicates that it is filed by S.D on behalf of Y.D. The Tribunal has made a search of its records and there is no indication that S.D. filed an Application on his own behalf on October 22, 2013 against the respondent as he alleges. Therefore, I do not agree that the applicant has filed an Application on his own behalf.
9Based on the applicant’s submissions he has not raised any new arguments which would cause me to reconsider the Decision that the applicant is not a proper litigation guardian for his daughter.
10With respect to the applicant’s allegation of bias, the legal principles related to reasonable apprehension of bias were set out by De Grandpré J. in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), 1976 CanLII 2 (SCC), [1978] 1 SCR 369, at p. 394:
. . . 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.
11The applicant provides no details or particulars to support his allegation that I have some connection with the respondent that would support the existence of a reasonable apprehension of bias. As such there is no basis for the applicant’s assertion that I cannot decide this Request for reconsideration.
12The Request for reconsideration is dismissed.
Dated at Toronto, this 7th day of August, 2014.
“Signed by”
Geneviève Debané
Vice-chair