A.G. v. Toronto Catholic District School Board, 2015 HRTO 1703

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.G. as represented by her litigation guardian D.G.

Applicant

-and-

Toronto Catholic District School Board

Respondent

RECONSIDERATION DECISION

Adjudicator: Keith Brennenstuhl

Date: December 17. 2015

Citation: 2015 HRTO 1703

Indexed as: A.G. v. Toronto Catholic District School Board

WRITTEN SUBMISSIONS

A.G. as represented by her litigation guardian D.G., Applicant

Self-represented

Introduction

1On October 22, 2015, the Tribunal issued its Decision in this Application, 2015 HRTO 1412, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

2The Tribunal’s Decision found that the Application was an abuse of process and it was dismissed.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. 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.

THE LAW

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, 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.

6The Tribunal’s Practice Direction on Reconsideration includes 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.

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.

ANALYSIS AND CONCLUSIONS

8I find that the applicant has not met the burden of establishing that the Decision is inconsistent with Tribunal jurisprudence or that the proposed reconsideration involves a matter of general or public importance.

9Although the applicant argues that the Decision is inconsistent with Tribunal case law he points to no other decisions of the Tribunal with which it might be said to be in conflict. The Tribunal stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 “a conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and clear and surprising departure from those legal rules. While the applicant may disagree with my determination that the Application was an abuse of process, he points to no clear and surprising departure from established legal rules with respect to abuse of process, indeed he points to no decisions of this Tribunal at all with which it is said to be in conflict.

10The applicant did raise the Decision of the Supreme Court of Canada in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19. However, in my view, the Decision has no application to this matter. In that case the Court was dealing with a public interest complaint in which the applicant had no personal interest or stake in the proceedings or its outcome. Here we are dealing with a proceeding in which the applicant had a personal interest in the proceeding as the proceeding was primarily concerned with providing a remedy to the applicant.

11The applicant suggests that the proposed reconsideration of the Application involves a matter of general or public importance. I disagree. An Application pursuant to section 34 of the Code is essentially a private claim of civil wrongdoing and primarily concerned with providing a remedy to the applicant. In my view reconsideration of this Application would not involve a matter of general or public importance. The Application was dismissed for abuse of process. I do not see how reconsideration of abuse of process dismissal would be of general or public importance.

12In sum, I find that the applicant has not established that my Decision is in conflict with established jurisprudence or Tribunal procedure or that the proposed reconsideration involves a matter of general or public importance.

13The Request is denied.