HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Elizabeth Efthymiadis
Applicant
-and-
London Police Services
Respondent
RECONSIDERATION DECISION
Adjudicator: Eli Fellman
Indexed as: Efthymiadis v. London Police Services
WRITTEN SUBMISSIONS
Elizabeth Efthymiadis, Applicant
Self-represented
BACKGROUND
1This Application was filed on April 2, 2015, and alleges discrimination with respect to goods, services and facilities because of creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2On May 22, 2015, after reviewing this Application, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) because the alleged incidents of discrimination appeared to have occurred outside the time for making an Application to the Tribunal. The applicant filed submissions opposing the dismissal of the Application.
3The Tribunal dismissed the Application because the alleged incidents of discrimination occurred outside the mandatory one-year limitation period for making an Application to the Tribunal. See 2015 HRTO 875.
4On July 29, 2015, the applicant filed a Request for Reconsideration of the Decision.
RECONSIDERATION REQUEST
5The Request for Reconsideration states the Tribunal should reconsider its Decision for the following reasons:
It fails to consider the assertion in the Application that the allegation against the applicant and her brother, the N5 and the subsequent Response made her feel like an oddity or people who should be excluded from mainstream society;
It is in conflict with Freitag v. Penetanguishene (Town), 2013 HRTO 893 which found that the applicant’s evidence that he experiences a sense of exclusion because of a religious observance, to which he does not adhere, which takes place at the opening of council meeting is sufficient to establish adverse treatment on the basis of creed;
The applicant disputes a statement attributed to her contained in the respondent’s April 4, 2014 Response to an earlier application filed by the applicant. The statement in question indicates that the applicant and her brother told a police officer employed by the respondent on December 13, 2012 that “they tap on the floor to communicate with people who live underground”. The application alleges that the statement made by the respondent’s employee constitutes discrimination on the basis of creed. She suggests that as there are facts in dispute and as this application is at a summary hearing stage, it should not be dismissed simply because the respondent has an alternate version of events; and
The Decision’s finding that the respondent does not perceive the applicant to be a member of the Spiritualist Church is based upon the respondent’s explanation of the events which are in dispute and was made without considering the question of discrimination in the totality of evidence.
6Therefore, according to the applicant, the Decision does not correctly apply legal principles and there are factors that outweigh the public interest in the finality of the Tribunal’s Decision.
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 last 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.
9The 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 applicant has not met the burden of establishing that any of the threshold criteria justifying reconsideration.
12As noted above, the applicant alleges that the Decision failed to consider the impact of the respondent’s statement contained in a Response to an earlier Application. The statement in question indicates that the applicant told a police officer employed by the respondent that she communicates with people underground through tapping. The issue under consideration in the Decision was whether the respondent’s statement in question can constitute discrimination on the basis of creed as alleged in the Application. The impact of the alleged statement upon the applicant is not relevant to this determination. While the applicant may consider this statement to be untrue, disturbing or impactful, this does not establish that there is any causal connection between the statement and the applicant’s religious beliefs or perceived religious beliefs.
13The Tribunal does not have the power to deal with or remedy general allegations of unfairness. The Tribunal only has the power to deal with discrimination that is prohibited by the Code. Discrimination in the legal sense requires proof that the respondent’s allegedly adverse treatment of the applicant is based, at least in part, on the applicant’s creed or perceived religious beliefs. In other words, the prohibited ground must be connected to the adverse treatment. It is evident based on the Application and the applicant’s submissions that although the applicant may believe that the conduct of the respondent is connected to the (mistaken) belief that the applicant is a member of the Spiritualist Church, this is an entirely speculative assertion and the applicant has not identified any evidence available to her that could prove such a connection.
14Thus, the facts in this Application differ significantly from those in Freitag v. Penetanguishene (Town). In that case, there was a clear connection between the conduct at issue, the recitation of a Judeo-Christian prayer at council meetings and the applicant’s belief system, which does not include the act of praying before the opening of public council meetings nor belief in the god to whom the appeal for wisdom and guidance is made in the Town Prayer.
15The applicant’s assertion that the Decision deviates from established Tribunal practise because it dismissed the Application on the ground that the respondent has provided an alternate version of events which are in dispute is incorrect. As noted in the Decision, the Application had not yet been served on the respondent and the respondent had not provided a response or other submissions to the Tribunal. Therefore, the Decision is based entirely upon the contents of the Application and the applicant’s additional submissions. As explained in the Decision, the Application and the submissions cannot support a determination that respondent’s statement in its April 4, 2014 Response to another application constitutes discrimination on the basis of creed.
16Further, even if the applicant was correct in her assertion that the Decision is in conflict with established jurisprudence or Tribunal procedure this would be insufficient to justify the Request for Reconsideration. As stated in Rule 26.5(b) the proposed reconsideration must also involve a matter of general or public importance.
17The Request for Reconsideration suggests that the applicant’s concern about the statement contained in the respondent’s April 4, 2014 Response is a matter of public interest because police resources and people’s time and energy have been squandered “since the beginning of this incident”. It is unclear to me how police resources or the time and energy of other people have been squandered in respect of this incident apart from the need to respond to the various applications that have been filed by the applicant herself.
18In sum, I find that the applicant has not established that the Decision is in conflict with established jurisprudence or Tribunal procedure and involves a matter of general or public importance, or that any of the other criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision are present. The Request is denied.
Dated at Toronto, this 13th day of August, 2015.
“Signed by”
__________________________________ Eli Fellman Vice Chai