D’Orazio v. Ontario Human Rights Commission, 2014 HRTO 654

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eugene D’Orazio

Applicant

-and-

Ontario Human Rights Commission

Respondent

A N D B E T W E E N:

Carlo Cardile

Applicant

-and-

Ontario Human Rights Commission

Respondent

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott

Date: May 7, 2014

Citation: 2014 HRTO 654

Indexed as: D’Orazio v. Ontario Human Rights Commission

WRITTEN SUBMISSIONS

Eugene D’Orazio and Carlo Cardile, Applicants

Self-represented

1The applicants filed identical Applications against the Ontario Human Rights Commission (the “Commission”). The applicants are certified teachers in Ontario and self identify as white Ontarians. They allege the Commission’s Policy and Guidelines on Racism and Racial Discrimination (the “Policy”) discriminates against them on the basis of their race, colour and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By decision dated January 27, 2014, 2014 HRTO 111 (the “Decision”), the Tribunal held it had no jurisdiction over these Applications because the applicants had not asserted their rights had been infringed by the Policy. The Tribunal held further that the applicants had no standing to challenge the Policy as public interest litigants because of the statutory provisions of the Code. For these reasons, the Tribunal dismissed the Applications.

3On February 28, 2014, the applicants filed a Request for Reconsideration on the basis that:

a. The Decision is patently unreasonable;

b. The reasoning in the Decision relating to public interest standing is outside of any reasonable interpretation of applicable law;

c. The Tribunal ignored Supreme Court of Canada guidance on public interest standing;

d. The Decision rejects the principle of the supremacy of the Charter of Rights and Freedoms; and,

e. The Tribunal has immunized the Policy from review.

4In the Request for Reconsideration, the applicants challenge the Policy and the statutory relationship between the Tribunal and the Commission. The applicants assert this relationship leads to a “judicial apprehension of bias”.

decision

5The Request for Reconsideration is denied.

analysis

6Under 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.

7The 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. Rule 26 of the Tribunal’s Rules of Procedure states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days from 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.

8The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO 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.

9As is clear from the Tribunal’s Rules of Procedure and Practice Direction, reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal confirmed that reconsideration is not an opportunity to re-argue a case.

10The main thrust of the Request for Reconsideration is that the applicants disagree with the Tribunal’s finding that they have no public interest standing to bring these Applications. The applicants have not provided any decisions of the Tribunal that contradict this finding.

11Instead, the applicants rely on the Supreme Court of Canada’s decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 to support their claim for public interest standing. However, the Tribunal’s jurisdiction, unlike the courts’, is governed by its statute. As set out in the Decision, the statutory provisions of the Code do not permit the Tribunal to give public interest standing to individuals in cases where they are not asserting that their own rights have been infringed. As such, the applicants have failed to establish the Decision is in conflict with established jurisprudence.

12In the Request for Reconsideration, the applicants also complain about the process followed by the Tribunal in determining the jurisdictional question. They argue the Tribunal did not provide a fair, just and expeditious resolution of the merits of the Applications, and the Tribunal violated the applicants’ rights to procedural fairness and the right to be heard.

13These Applications were received by the Tribunal on November 15, 2013. On December 3, 2013, the Tribunal sent a Notice of Intent to Dismiss (“NOID”) because the allegations in the Application appeared to be outside the Tribunal’s jurisdiction (power to decide) on the following basis:

a review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Human Rights Code allegedly committed by the respondent.

your completed Application does not appear to raise an issue the HRTO has the jurisdiction (power) to resolve since it appears that your Application does not raise a social area covered by the Code.

14The applicants were advised to file their submissions on the NOID by January 16, 2014 and their submissions were received on that date.

15The applicants were not denied a fair process. They were advised the Tribunal may not have jurisdiction because the Applications failed to identify specific acts of discrimination allegedly committed by the respondent. They were given an opportunity to file submissions on the question of jurisdiction. The applicants filed their submissions and they were considered by the Tribunal.

16The Tribunal’s NOID process was considered by the Divisional Court in Iyirhiaro v. Human Rights Tribunal of Ontario and TTC, 2012 ONSC 3015 and determined to be consistent with the principles of natural justice. On that point, the court held:

There was no denial of natural justice by the Tribunal. The applicant had a hearing in writing. The Tribunal was not required to hold an oral hearing on the issue of its jurisdiction (see the Code, s. 43(2) and Rule 13). The applicant had notice of the Tribunal’s concern that the application was out of time (see the Notice of Intent to Dismiss). He was given an opportunity to present his case in writing and to reply to the TTC’s written submissions.

17It is apparent that the applicants disagree with the Tribunal’s finding that it does not have jurisdiction over the Applications. Reconsideration is not an appeal. The applicants have provided no exceptional circumstances that outweigh the importance of finality in the Tribunal’s decisions, including the Decision in this case dismissing the Applications. In these circumstances, the Request for Reconsideration is denied.