Thompson v. Selective Personnel Ltd., 2014 HRTO 121

Human Rights Tribunal of Ontario

B E T W E E N:

Amy Thompson Applicant

-and-

Selective Personnel Ltd. Respondent

RECONSIDERATION DECISION

Adjudicator: Naomi Overend Date: January 28, 2014 Citation: 2014 HRTO 121 Indexed as: Thompson v. Selective Personnel Ltd.

WRITTEN SUBMISSIONS

Amy Thompson, Applicant Self-represented

1This Application was filed pursuant to s. 34 of the Human Rights Code on August 26, 2008, and a Decision was issued finding in favour of the applicant on August 6, 2009 (2009 HRTO 1224). The respondent filed a Request for Reconsideration (Form 20) of that Decision, which was denied on November 6, 2009 (2009 HRTO 1888).

2In the intervening years, the applicant made attempts to enforce the order, which were, for a variety of reasons, unsuccessful. The applicant filed this Request for Reconsideration on November 28, 2013, asking to name an organizational respondent (Selective Personnel International Ltd.) and a personal respondent (the apparent owner of the named respondent) to aid in her enforcement attempts. Neither proposed respondent was named in the Application when it was filed and adjudicated. In the alternative, the applicant asks that the Tribunal substitute Selective Personnel International Ltd. for the named respondent or provide an “oppression remedy for creditors.”

3This Tribunal has no jurisdiction to consider the Request for Reconsideration on the basis of the legal doctrine of functus officio. This doctrine and the rationale behind it were described by the Supreme Court of Canada in Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848 (“Chandler”) at p. 861.

Apart from the English practice which is based on a reluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra. [Emphasis added.]

4As noted in the above passage from Chandler, the exception to the rule that a tribunal is functus after reaching a final decision is where a statute authorizes a tribunal to revisit its decisions. See also Jacobs Catalytic Ltd. v. International Brotherhood of Electrical Workers, Local 353, 2009 ONCA 749 at para. 33.

5Under 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 the 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.

6The Tribunal has established the test for reconsideration in Rule 26.5:

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.

7The difficulty in this case is that the applicant is not asking the Tribunal to reconsider its Decision, but to make a fresh decision against a different group of respondents. At no point during the initial proceedings did the applicant ask the Tribunal to add these respondents. Accordingly, there is no Tribunal decision denying this request which the applicant is now asking the Tribunal to overturn.

8The Tribunal’s reconsideration powers are not so broad that it can re-open a final decision four years later, give notice to the proposed respondents and hold a fresh hearing. Nor can it simply “substitute” the name of one corporation with another.

9Finally, the Tribunal is not responsible for the enforcement of its orders. Once a Tribunal issues an order, it is up to the applicant to enforce it, if necessary, through the Superior Court. It simply cannot assume jurisdiction, where none is given to it by statute, to grant the oppression remedy sought by the applicant.

10Accordingly, the applicant’s Request for Reconsideration is denied.