R.C. v. District School Board of Niagara, 2015 HRTO 579

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

R.C.

Applicant

-and-

District School Board of Niagara

Respondent

-and-

Eden High School Spiritual Learning Centre

Intervenor

RECONSIDERATION DECISION

Adjudicator: Douglas Sanderson

Date: May 6, 2015

Citation: 2015 HRTO 579

Indexed as: R.C. v. District School Board of Niagara

WRITTEN SUBMISSIONS

R.C., Applicant

Self-represented

1The applicant requests Reconsideration of the Tribunal’s Decision of February 18, 2015, 2015 HRTO 212, dismissing this Application for lack of standing.

2The circumstances in which Reconsideration may be granted are set out in Rule 26.5:

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.

3The 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.

4The applicant filed a Request for Reconsideration (the “Request”) on March 26, 2015 and relies upon Rule 26.5(d).

5In the Application, the applicant asserted that the respondent exhibits preferences for Protestant Christianity and excludes other creeds at its facilities. In the Application, the applicant made two factual allegations in support of this assertion: 1) that the respondent operates Eden High School (“Eden”) as a specifically Protestant Christian public high school and 2) that the respondent continues to allow missionary organizations, i.e., Habitat for Humanity, to operate Christian mission activities within its programs.

6Although the applicant relies upon Rule 26.5(d), the Reconsideration Request consisted almost entirely of submissions that the Decision was incorrect in a number of respects. As is clearly enunciated in the Practice Direction on Reconsideration and in the Tribunal's jurisprudence, Reconsideration is not an appeal or evaluation of alleged errors in a Decision. See Latronico v. York Region District School Board, 2012 HRTO 637 and 4137566 Canada Ltd. v. Clements, 2011 HRTO 1008. Therefore, the applicant’s submissions that the Tribunal erred in its Decision do not establish grounds for Reconsideration.

7In these circumstances, it is unnecessary to address each of the applicant’s arguments. In my view, it is worthwhile to comment on the applicant’s fundamental misunderstanding of the scope of this Application. The applicant submitted that the factual allegations described above were merely two examples of the respondent’s discriminatory conduct and that the scope of his Application included evidence of other alleged discriminatory acts that he intended to call in a merits hearing. This is incorrect. The scope of an application is determined by the factual allegations set out in the application itself. An application must contain all of the factual allegations on which the applicant intends to rely in order that the respondent may know the case it has to meet and can respond to it in a response. In this case, I note that the respondent’s Response responded to the two factual allegations set out in the Application and the evidence the respondent expected its witnesses to provide focussed entirely on these allegations, no doubt because these were the only allegations the applicant made. An applicant may request to add allegations to an application by filing a Request for an Order During Proceedings, which the applicant did not do. It appears the applicant expected to be able to introduce new factual allegations into this proceeding at the hearing. When dealing with requests to amend, the Tribunal considers, amongst other things, the timing of the request and any prejudice to the other party and often denies late amendment requests. See: Murugesan v. CIBC Mortgages Inc., 2015 HRTO 206, Harrypersad v. Peel District School Board, 2012 HRTO 2291, Mulosmani v. 14475764 Ontario Inc. o/a Express Employment Professionals Corporation, 2014 HRTO 1481, Kamal v. Peel Condominium Corporation No. 51, 2015 HRTO 53.

8In this case, the only factual allegations set out in the Application were those related to Eden High School and Habitat for Humanity. For the reasons set out in the Decision, the applicant has no standing to bring these allegations and the Application was dismissed accordingly.

9The applicant also submitted that the Application “was not handled in an appropriately neutral manner”. This argument is essentially an allegation of reasonable apprehension of bias, which, if well founded, could be a factor that outweighs the finality of Tribunal decisions. In this case, the applicant’s argument is not well founded.

10As is noted at paragraph 11 of the Decision, the Tribunal held a pre-hearing conference during which I revealed that I am related through marriage to a senior member of the respondent’s administration (the Director of Education). The parties were afforded an opportunity to raise any objection about me continuing as the adjudicator in this matter and each indicated that they had no such objection. After the Tribunal directed the parties to address the issue of standing in a Case Assessment Direction dated January 9, 2015, the applicant raised the issue of bias and requested that I recuse myself on the basis of my relationship through marriage to the Director (who he incorrectly characterized as a “close family relative”) and that I granted intervenor status to the intervenor and raised the issue of his standing, actions with which the applicant disagreed. At the hearing, however, the applicant withdrew his bias argument when I again clarified my connection to the Director (the Director’s brother is married to my cousin and I have no personal relationship with the Director). The applicant now submits that in light of the decision granting intervenor status to the intervenor, the fact that I raised the issue of standing and the Decision dismissing his Application, which he disagrees with for various reasons, and my “relationship” with the Director that the case was not dealt with in an impartial manner.

11As is noted in the Practice Direction on Reconsideration and as has been noted in many Reconsideration Decisions, Reconsideration is not an opportunity for a party to repair deficiencies in the presentation of its case. Here, the applicant had two opportunities to argue the issue of bias, at the pre-hearing conference and at the hearing, but did not pursue this argument until he received an adverse ruling. In these circumstances, reasonable apprehension of bias is not in my view an argument available to the applicant in a Request for Reconsideration.

12In any event there is no basis for a finding of reasonable apprehension of bias in this case. Impartiality is the fundamental qualification for an adjudicator. There is a presumption of impartiality and the onus is on the person seeking disqualification to establish a reasonable apprehension of bias. See Wewaykum Indian Band v. Canada, 2003 SCC 45. The Supreme Court of Canada enunciated the principles to be applied in considering apprehension of bias in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at p. 394 as follows:

. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

13Tribunal adjudicators routinely make procedural rulings and direct the parties to address pertinent issues regarding cases they have been assigned to adjudicate. The Tribunal has ruled on several occasions that making preliminary rulings or engaging in case management does not create a reasonable apprehension of bias. See Group of Employees v. Presteve Foods, 2012 HRTO 1365, Rosenberg v. Ombudsman Ontario, 2012 HRTO 676, Mayta v. Canada Lands, 2009 HRTO 1613, and Noronha v. 1174364 Ontario, 2009 HRTO 1292. Consequently, the fact that I made a procedural ruling and directed the parties to address a jurisdictional issue does not amount to a reasonable apprehension of bias. In my view, the mere fact that I made a final Decision that was unfavourable to the applicant is no more a proper basis for a finding of apprehension of bias than a procedural one.

14In my view an informed person, viewing the matter realistically and practically would be aware, as the applicant was, that I have no “relationship” in the substantive sense with the Director and that my connection with the Director is solely through marriage. In these circumstances, an informed person would conclude that there is no reasonable apprehension of bias.

15In my view, the applicant provided no reason to conclude that compelling and extraordinary circumstances exist that would call for Reconsideration of the Decision to dismiss the Application. The Request for Reconsideration is dismissed.