HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Fair Parenting Inc.
Applicant
-and-
Durham Student Transportation Services, Durham District School Board and Durham Catholic District School Board
Respondents
RECONSIDERATION DECISION
Adjudicator: Geneviève Debané
Indexed as: Fair Parenting Inc. v. Durham Student Transportation Services
WRITTEN SUBMISSIONS
Fair Parenting Inc., Applicant
Eric Letts, Counsel
1On November 19, 2014, the Tribunal issued a Notice of Intent to Dismiss the Application (“NOID”). After reviewing the applicant’s submissions in response to the NOID, the Tribunal issued Decision 2014 HRTO 1744, which dismissed the Application.
2On December 16, 2014, the applicant filed a Request for reconsideration.
3Under 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. 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). 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.
4The 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.
5Reconsideration 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 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.
7In this case the applicant alleges a number of reasons why the Tribunal should reconsider the Decision, including that my “decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance”.
8The applicant alleges that amongst other things that it was not provided with an opportunity of making submissions on the ultimate issues which resulted in the dismissal of the Application.
Decision
9In this case the NOID advised the applicant that it appeared that the Application did not relate to a breach of its rights under the Code. The applicant was provided with the opportunity of explaining why the Tribunal should continue to process the Application. In its submissions, the applicant explained in detail the nature of the contractual relationship that it was asserting vis-à-vis the respondents. I cannot accept the applicant’s suggestion, in light of this, that it did not know or was not aware that this was an issue that was being considered by the Tribunal. I find that the applicant had the opportunity of explaining why it believed that its rights under the Code had been infringed by the respondents.
10Regardless, I have considered the additional submissions filed by the applicant in which it states that the Decision is in conflict with established case law and cites certain cases. The applicant relies on J.B. v. Catholic Children’s Aid Society of Toronto, 2009 HRTO 2098, and Payne v. Otsuka Pharmaceuticals Co., (2001) 2001 CanLII 26231 (ON HRT), 41 CHRR D/52, that the issue is “whether there is some nexus or link in the chain of discrimination between the respondent and the complainant”.
11I find that this line of cases is not in conflict with the Decision. The reason that the Application was dismissed was because there is no link or nexus between the applicant and any of the respondents. In all of the cases cited by the applicant, the applicant alleged that one of his/her rights under the Code had been infringed. That started the “chain of discrimination”. In this case the applicant seeks to rely on another potential applicant’s rights under the Code to start “a chain of discrimination”.
12I find this situation to be more analogous to the situation of an employee who was terminated by their employer for allegedly discriminatory reasons which then allegedly resulted in the employee defaulting on a contract with a third party. It would not be open to the third party to bring an application at the Tribunal as against the employer on the basis that its discriminatory conduct caused the employee to default on the contract. It is for the employee to bring his or her own Application as against the employer.
13Similarly, in this case the applicant has no direct contractual relationship with any of the respondents. If any of the parents (or perhaps the children) themselves believes that the respondent’s busing policies are discriminatory, then they must be the ones to initiate an Application.
14Though the applicant takes issue with the fact that the dismissal of the Application occurred at a preliminary stage, the Tribunal’s Rules provide for the process because in the Tribunal’s view it is fair, just and expeditious for the Tribunal to review Applications to determine whether or not they fall within their jurisdiction prior to these being served on respondents. This is especially so when there is no direct relationship between an applicant and a respondent.
15The applicant also takes issue with the fact that I stated that because it is a corporation that it is incapable of being in a child-parent relationship. The NOID explicitly asked the applicant to explain how its right to be free from discrimination with respect to family status was being infringed. I note however, that the applicant has never alleged that it was in a child-parent relationship and that this was never an issue in dispute. Therefore, nothing in this Decision prevents a corporate applicant, in future cases, asserting a claim on the basis of family status; any questions of standing or other potential limitations to a corporation’s capacity to claim the infringement of a Code-based right can be determined at that time.
16Having considered the detailed submissions of the applicant, I decline to reconsider the Decision.
Dated at Toronto, this 24^th^ day of March, 2015.
“Signed by”
Geneviève Debané
Vice-chair