Coralie Perkins-Aboagye v. Greenboro Community Centre Association, 2015 HRTO 270

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Coralie Perkins-Aboagye

Applicant

-and-

Greenboro Community Centre Association, Esther Becker, Kate McEniry and Louise McGoey

Respondents

A N D B E T W E E N:

Coralie Perkins-Aboagye

Applicant

-and-

Kimberly Matte, Esther Becker and Kate McEniry

Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart Date: March 6, 2015 Citation: 2015 HRTO 270 Indexed as: Perkins-Aboagye v. Greenboro Community Centre Association

WRITTEN SUBMISSIONS

Coralie Perkins-Aboagye, Applicant

Self-represented

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2014 HRTO 1027 dated July 14, 2014, which dismissed these two Applications.

2On July 16, 2014, the applicant filed a Request for Reconsideration of the Tribunal’s Decision and subsequently filed an amended Request for Reconsideration on July 17, 2014, together with a significant amount of e-mail correspondence since that time. I have reviewed all of the material filed by the applicant since the date of my Decision for the purpose of considering her Request for Reconsideration as amended.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”) provides as follows:

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.

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The 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).

5The 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.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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.

7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an Application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

8The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 of the Rules provides:

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.

9As a result, I need to determine whether the material filed by the applicant in support of her request for reconsideration satisfies any of the criteria set out in Rule 26.5. The applicant relies upon the criteria identified in Rule 26.5(c) and (d).

10A considerable amount of the material filed by the applicant since the date of my Decision repeats information, materials and positions that she already had submitted or asserted at the time of the summary hearing and that I already considered for the purpose of my Decision. As stated above, it is not the purpose of reconsideration for a party to repeat arguments and positions that they have already asserted or taken or to attempt to re-argue their case. Accordingly, in this Reconsideration Decision, I will only address new matters raised by the applicant as a result of the summary hearing or my Decision.

11The applicant requests that another Tribunal member, other than myself, should decide her Request for Reconsideration. As stated by the Divisional Court in Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 at para. 16, “the mere fact that an adjudicator determines a request for reconsideration of his or her own decision does not, in and of itself, create a reasonable apprehension of bias in the context of this legislative scheme”. The test for reasonable apprehension of bias, as summarized in the Landau decision, is “whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly”. While I appreciate that the applicant does not agree with my Decision, I do not see anything in the Decision or the conduct of the summary that gives rise to a reasonable apprehension of bias that would disqualify me from determining her reconsideration request.

12The applicant also has made a request for a tape recording of the summary hearing. In accordance with the Tribunal’s general practice, summary hearings are not recorded. As a result, no such tape recording exists. The applicant also raises as an issue a statement I routinely make at the start of any hearing, to the effect that while I will be making notes of the parties’ submissions, these notes are for my own use and are not available to the parties, so that each party is responsible for taking whatever notes of the proceeding they deem fit for their own purposes. While the applicant perceives that I may have “something to hide” by stating that my notes are not available to the parties, the Tribunal’s practice in this regard is consistent with the practice of the courts and other tribunals not to disclose or share an adjudicator’s notes.

13The applicant takes issue with the characterization in my Decision of the October 28, 2013 e-mail from Person A as “a polite and perhaps over-nice message for the applicant to back off and that her attentions are not welcome”: see para. 23. She also takes issue with my having characterized Person A’s e-mail in this manner during the course of the summary hearing. The applicant in her reconsideration request, as she did at the summary hearing, takes issue with this characterization of Person A’s e-mail, primarily on the basis of Person A’s statement near the end of the e-mail indicating that perhaps she and the applicant could “sit down for a few minutes after class” to talk. In the context of the entirety of Person A’s e-mail, I do not interpret this as an expression of a desire on Person A’s part to pursue or develop a relationship with the applicant, and certainly not on the basis that the applicant desired. Rather, in context, I see this as a perhaps polite and over-nice effort on Person A’s part to indicate a willingness to speak to the applicant to discuss what the applicant had expressed and Person A’s response to the applicant’s unwanted attentions, in the context of an instructor and a class participant. I stand by my characterization of Person A’s e-mail as stated in my Decision.

14The applicant alleges that by questioning her at the summary hearing about whether Person A was really telling the applicant to “back off” in her October 28, 2013 e-mail, I was somehow sending a “subtle message” to respondent counsel to contact the police. The applicant states that on June 4, 2014, about two weeks after the summary hearing, she was contacted by the police and accused of stalking Person A. In the context of her discussion with the police, the applicant states that the police officer used the phrase that she should “back off” from any contact with Person A. In later correspondence, the applicant appears to accuse me of having contacted the police directly about this. I did no such thing, nor did I send any “subtle message” to respondent counsel to contact the police. Rather, I was exploring with the applicant what I regarded as a reasonable interpretation of Person A’s e-mail.

15The applicant asserts that at the summary hearing, respondent counsel admitted that the respondents had taken action against the applicant because Person A is married. Respondent counsel did no such thing. Rather, in the context of the applicant’s allegation of discrimination because of sexual orientation, respondent counsel observed that Person A was married to a man, which he suggested was an indication that Person A is not gay. I did not refer to this submission in my Decision as it was not relevant to my determination of the issue to be addressed at the summary hearing, which is whether the applicant had any reasonable prospect of successfully establishing that her rights under the Code had been violated, which required her to be able to establish a link or connection between the factual allegations she was raising and a protected ground under the Code. For all of the reasons set out in my Decision, I found that the applicant had been unable to establish any such link or connection, and I stand by this finding.

16The applicant asserts that during the course of the summary hearing, I said that Person A did not want to meet with the applicant. I said no such thing. I did question the applicant as to whether a reasonable interpretation of Person A’s e-mail is that she was politely asking the applicant to “back off”, which I regard and continue to regard as a reasonable characterization of the e-mail in its entirety. The e-mail clearly indicates a willingness on Person A’s part, at least at that time, to speak with the applicant briefly at some point after class, as discussed above. However, that in my view does not change the overall point of Person A’s e-mail.

17The applicant raises an issue about respondent counsel saying an allegedly effusive “thank you” at the conclusion of the summary hearing. It is not uncommon at the conclusion of a hearing for one or more of the parties to thank an adjudicator, and I would regard this as nothing more than a mere courtesy.

18The applicant states that, near the end of her submissions in chief, she raised an issue regarding the respondents’ late service of materials to be relied upon for the summary hearing, and alleges that I became “audibly upset” with her over this. I did no such thing. I did, as the applicant acknowledges, question her as to whether she experienced any prejudice as a result of not receiving this material until some four days later and well in advance of the summary hearing, and the applicant has acknowledged that she had plenty of time to review this material.

19The applicant raises an issue about the fact that the respondents did not submit a police report as part of the material to be relied upon for the summary hearing. This represents a misunderstanding on the applicant’s part as to the nature of a summary hearing. A summary hearing is conducted by the Tribunal at a very early stage in the proceeding, where there is reason for concern that an applicant may not be able to establish a link or connection between the grounds of discrimination alleged in the application and the factual allegations raised. A summary hearing is not a full hearing on the merits, where the Tribunal weighs conflicting evidence and assesses credibility. Most often, as in this case, a summary hearing is conducted prior to the parties being under any obligation under the Tribunal’s Rules of Procedure to disclose to each other arguably relevant documents.

20The issue at a summary hearing is not whether the assertions made by an applicant or a respondent have been proven by evidence on a balance of probabilities, but rather whether the applicant can establish that she has a reasonable prospect of success in showing some link or connection between the factual allegations raised in the application and a protected ground under the Code. In making this assessment, the Tribunal in appropriate cases is mindful of the fact that full disclosure has not been made at the summary hearing stage and that the reasons for why a respondent took a certain action may reside solely in the respondent’s knowledge. At the same time, the legal burden or onus still remains on the applicant at a summary hearing to be able to articulate some reasonable basis to establish a link or connection between her factual allegations and a Code-protected ground. This is what the applicant failed to do at the summary hearing, for all of the reasons stated in my Decision.

21Finally, the applicant raises an issue about a complaint that she says she filed with the Ombudsman’s Office and correspondence that she says was sent to that Office by respondent counsel asking the Ombudsman not to conduct an investigation due to the prospect of further litigation. This is stated to have occurred sometime after the summary hearing. This is not an issue raised in the Application as an alleged violation of the applicant’s rights under the Code, and rather appears to be an issue as between the applicant and the Ombudsman’s Office.

22As a result, I do not find that the applicant has established that my Decision is in conflict with established jurisprudence or Tribunal procedure, nor do I find that there are factors that outweigh the public interest in the finality of Tribunal decisions.

23For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.