Adamson Estate v. Toronto Police Services Board, 2014 HRTO 288

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

The Estate of Edward Adamson

Applicant

-and-

Toronto Police Services Board and Bill Blair

Respondents

-and-

The Ontario Human Rights Commission

Intervenor

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: March 6, 2014

Citation: 2014 HRTO 288

Indexed as: Adamson Estate v. Toronto Police Services Board

APPEARANCES

Ontario Human Rights Commission, Intervenor

Cathy Pike and Insiya Essajee, Counsel

1On November 29, 2013 the Tribunal dismissed this Application in Decision 2013 HRTO 1983. The intervenor has asked the Tribunal to reconsider and reverse its Decision and remit the case to a differently constituted panel for hearing of the merits of the Application.

2Although there were a number of other respondents originally identified by the applicant, this Request relates only to the Application as it relates to the respondents Toronto Police Services Board and Bill Blair.

3The issue raised by this Request was framed as follows in the Decision:

All of the responding parties take issue with the standing of the Estate to commence and proceed with this Application. At the hearing I asked that the parties focus their submissions on what appeared to be a unique feature of this case that unlike all of the other decisions dealing with the capacity of an estate to commence or proceed with a claim of some kind, the person in this case had been dead for some time when all of the alleged acts of discrimination took place.

This fact situation is unique in this sense and all of the authorities referred to me by the parties are distinguishable for that reason.

4In the Decision I concluded that the applicant had no standing to file and proceed with this Application because it could not be said to have experienced discrimination. My conclusion on this aspect of the issue in dispute was found at paragraph 9:

In my view this Application as currently framed must be dismissed. I find that the Estate has no standing to commence this Application because, by its very nature it is not an entity capable of experiencing discrimination and it did not do so. Given this conclusion, it is not necessary to deal in detail with the other arguments made by several of the respondents. However, I also find that the Application as it relates to the TPA, AAA and TPSOA respondents should be dismissed because it has no reasonable prospect of success as against those respondents.

While the Application was dismissed in its entirety on the basis of the standing issue I made two additional findings: (1) that the Application was also dismissed as against several other respondents identified in the Application on the separate basis that there was no reasonable prospect of success as against these respondents; and (2) that I declined to separately dismiss the Application against the remaining respondents, identified above, on the basis that either there was no prima facie case against them or that there was no reasonable prospect of success with respect to these remaining respondents. These latter conclusions in the Decision are not the subject of this Request.

THE REQUEST FOR RECONSIDERATION

5In the Request for Reconsideration the intervenor argues that the Decision is in conflict with established case law and the proposed reconsideration involves a matter of general or public importance.

6The respondents were not called upon to respond to the Request.

DECISION

7Under 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.

8The 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.

9The 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.

10As 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.

11I find that the intervenor has not met the burden of establishing any of the threshold criteria justifying reconsideration.

12As indicated above, the intervenor relies on Rule 26.5(c) and (d). The intervenor makes a number of submissions as follows:

a. The Decision unreasonably equated the question of whether an estate has standing with the question of whether an estate itself has a dignity interest and is capable of experiencing discrimination. The intervenor argues that the effect of this is to make the demonstration of a dignity interest an added requirement for entry into the human rights system and is in conflict with the established jurisprudence;

b. The Decision overlooked the principle recognized in the jurisprudence and in social practices that a person’s dignity interest can survive death and be injured by actions that occur after death;

c. If the deceased can have no dignity interest and if such an interest on the part of a deceased is a pre-requisite for the commencement of an application then certain discriminatory actions are removed from the scope of the Code. This will be so even where the claim in question raises a public interest as a private concern. The intervenor argues that this effect of the Decision is inconsistent with the interpretive principles and purpose of the Code.

13In support of its Request, the intervenor repeats some of the arguments made orally before the Tribunal. In particular, the argument that certain kinds of claims may not be advanced if the Decision stands was made at the hearing and addressed. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. Neither is it an appeal of a Decision that a party disagrees with.

14The essence of the intervenor’s argument is that the Decision is inconsistent with established jurisprudence and imports a new requirement for access to the Code’s enforcement system. Despite the able submissions of the intervenor, and while I accept that the Decision may raise a matter of public importance, I am not convinced that my conclusions in the Decision are in conflict with established jurisprudence.

15The Tribunal explained in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules.

16While I agree with the intervenor that importing a threshold requirement that an applicant show a dignity interest before accessing the system might be a new requirement, in my view the Decision does not have this effect. I would add that, in my view, the purpose of the tribunal’s 26.5(c) reconsideration power cannot be to prevent the evolution of the law into new areas, but rather it provides a discretionary opportunity to reconsider surprising, and perhaps even inadvertent, departures from well-established legal principles.

17In effect, this argument asks me to interpret the Decision as others will have to in the future, which is neither my role to, nor can I, do. It would also be inappropriate to attempt to buttress my conclusions in the context of this Request. That said, to my mind the submissions of the intervenor over read the rationale of the Decision. In my view the Decision does not have the effect attributed to it by the intervenor. In my view the Decision merely stands for the proposition that an estate is not a person capable of experiencing discrimination and accordingly in the circumstances in this case an estate cannot file an application on behalf of the person whose interests it administers when the acts alleged to constitute discrimination occurred after the person’s death. In Canada (Attorney General) v. Hislop, 2007 SCC 10, the Supreme Court of Canada discussed the issues in much the same way as I did in 2013 HRTO 1983. While I acknowledged the issues were somewhat different before the Supreme Court in that the person claiming the right had experienced the disadvantage before death, I quoted (and adopted the reasoning from) the following passage at paragraph 72 of Hislop:

In the context in which the claim is made here, an estate is just a collection of assets and liabilities of a person who has died. It is not an individual and has no dignity that may be infringed.

18Notwithstanding my adoption of the reasoning of the Supreme Court of Canada, the intervenor argues that the Decision in 2013 HRTO 1983 is inconsistent with cases where damages were awarded to an estate which prosecuted an Application. The intervenor argues that Baptiste v. Napanee & District Rod & Gun Club (1993), 1993 CanLII 16495 (ON HRT), 19 CHRR D/246 stands for the proposition that while an estate may not have a dignity interest it can be used as means of vindicating the rights of the deceased.

19Assuming without deciding that an estate can maintain an application on behalf of a deceased I observe again that the circumstances considered in 2013 HRTO 1983 were apparently without precedent. In Baptiste, above, as in all of the other cases referred to by the parties, there was a person who allegedly experienced discrimination before their death. This was not the case here and it is entirely unclear to me how those cases are helpful to the circumstances arising in this case.

20The intervenor also argues that the Decision is inconsistent with decisions of the Tribunal which found a violation where there was no harm done to the applicant’s dignity interest. The intervenor relies on one such decision in Unantenne v. Hospital for Sick Children (“Unantenne”), 2012 HRTO 1222, and in particular the conclusion in this decision that the asking of a question during an interview that identified the applicant’s immigration status was contrary to section 23(2) of the Code. Assuming without deciding that this decision is correct it seems to me that one such decision (and I acknowledge that there may be others) does not establish the existence of a clear legal rule that the Decision runs counter to. I would also observe that in the case relied on there was a finding that the respondent had violated section 23(2) of the Code, which states:

The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

This provision has been held to prohibit the conduct complained of whether or not it caused actual harm to the applicant so long as the prohibited conduct was experienced; and indeed the applicant in that case was alive and did experience the conduct. In 2013 HRTO 1983 the alleged acts of discrimination were both of a different character than those prohibited in section 23(2) and were not experienced by a living person identified as the applicant.

21Closely related to these submissions is the intervenor’s argument, which was not made at the hearing, that the law recognizes that some personal interests survive death. In this regard the intervenor relies on the following:

a. The Criminal Code of Canada which make it an indictable offence to improperly or indecently interfere with or offer any indignity to a dead human body or human remains. The intervenor notes that these provisions have been held to apply to the desecration of a monument marking human remains;

b. In R. v. Gallety [2001] O.J. No. 5619, the court considered and vindicated the dignity interest of a deceased whose records were sought in the context of the proceeding. Similarly in R. v. Dick, 2009 NBQB 98 the defendant was charged with an assault on A.P. who subsequently passed away. In disposing of the defendant’s request for broad disclosure of sensitive records of A.P. “the potential prejudice to the complainant’s dignity and privacy [?]should not be lost merely because she is deceased.”

c. There are social practices that demonstrate recognition for the dignity of the deceased including the granting of a posthumous pardon in 2010 by the government of Nova Scotia to a black woman who had been jailed in 1946 for sitting in the whites-only section of a segregated movie theatre.

22Although this aspect of the intervener’s argument was not made at the hearing, in the circumstances I have considered these points. Clearly some of these examples can be distinguished. One involves a statutory prohibition another a political decision intended to redress a historic wrong with abiding consequences for society today. It’s not entirely clear to me that either of these can be said to be about responding to an abiding interest of the deceased person. Most importantly I note that the intervenor’s argument appears to be in direct conflict with the reasoning of the Supreme Court of Canada in Hislop, above, which found that certain kinds of interests do expire with the death of the person claiming that a right to equal treatment had been violated. Similarly it is clear that the law does not recognize an abiding interest in not being slandered beyond death.

23I appreciate that this is a difficult issue and apparently without precedent. The conclusions in the Decision were not arrived at easily or lightly but it seems to me that the conclusion I came to - that an estate is not a person which can experience discrimination - is not in conflict with any settled legal principle. I also acknowledge the concern that the effect of the Decision might be that certain kinds of claims cannot be vindicated. However I note again that in my view the Decision does not import a new threshold in order to access enforcement. It is also seems to me that, contrary to the argument of the intervenor, my obiter comments about how such claims might be advanced was entirely consistent with the approach taken in a number of other cases which I referred to in the Decision such as Braithwaite v. Ontario (Attorney General), 2006 HRTO 15 and most particularly Brockie v. Brillinger (No.2), 2002 CanLII 63866 (ON SCDC), 43 CHRR D/90.

24For all of these reasons I find that the intervenor has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.