S.C v. Halton Children’s Aid Society, 2015 HRTO 941

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.C. and I.C. by his Litigation Guardian S.C.

Applicants

-and-

Halton Children’s Aid Society and Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services

Respondents

A N D B E T W E E N:

S.C. and J.C. by her Litigation Guardian S.C.

Applicants

-and-

Halton Children’s Aid Society and Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services

Respondents

A N D B E T W E E N:

S.C. and K.C. by her Litigation Guardian S.C.

Applicants

-and-

Halton Children’s Aid Society and Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services

Respondents

RECONSIDERATION DECISION

Adjudicator: Maureen Doyle

Date: July 16, 2015

Citation: 2015 HRTO 941

Indexed as: S.C v. Halton Children’s Aid Society

WRITTEN SUBMISSIONS

S.C., I.C., J.C., and K.C. by their Litigation Guardian S.C., Applicants

Self-represented

Introduction

1On December 11, 2014, the Tribunal dismissed these Applications for reasons provided in 2014 HRTO 1776 (the Decision). The Applicants, through their litigation guardian, ask the Tribunal to reconsider the Decision and relies on Rule 26.5(a),(c) and (d) of the Tribunal’s Rules of Procedure.

2The Tribunal did not direct the respondents to make submissions regarding the request for Reconsideration.

3I decline to exercise my discretion to reconsider the Decision for the following reasons.

Background

4This Application was decided following a summary hearing. In the Case Assessment Direction ordering a Tribunal-initiated summary hearing, the applicants were advised they would be called on to “point to the evidence upon which they would prove a link between the respondents’ alleged actions and the grounds cited, and reprisal. No witnesses will give evidence during the summary hearing.”

5The respondents were not required to file a Response to the Applications prior to the summary hearing but attended the hearing and made submissions. Their position was that the applicants had failed to demonstrate a link between their alleged actions and a ground protected by the Code.

6After considering the applicants’ documents and hearing the parties’ submissions the Tribunal dismissed the Application, finding that the applicants’ claim of age discrimination had no reasonable prospect of success given the definition of age contained in Code and, further, there was no evidence of differential treatment due to family status, no evidence linking the CAS worker’s alleged actions to family status, no evidence linking the respondents’ alleged discriminatory actions to the Litigation Guardian’s age or family status, and no indication that the applicants had claimed or tried to enforce their rights under the Code or that they refused to infringe the Code protected rights of another person. Decision, above, paragraphs 24-30.

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 amended June 2013). 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 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.

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 applicants have not met the burden of establishing any of the threshold criteria justifying reconsideration.

12The applicants submit that I “clearly misunderstood our application”. The applicants essentially repeat arguments made orally at the summary hearing. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. The applicants made four specific arguments in support of the Request.

Failure to Consider Applicants’ Evidence

13The applicants argue that I concluded there was “no evidence from the minor applicants”. In fact the decision considers the applicants’ statements at paragraphs 13, 14 and 15. The problem with that evidence was, as the reasons explain at paragraphs 26-30, that it did not provide evidence of differential treatment due to family status or link the CAS worker’s alleged actions to family status, and gave no indication that the applicants had claimed or tried to enforce their rights under the Code, or that they refused to infringe the Code-protected rights of another person. The CAD made clear that the applicants would be expected to produce evidence or make submissions to support these claims and they failed to do so.

14The Litigation Guardian also submits that “the Vice-chair also instructed that we were not allowed to present our witness evidence”. The CAD made clear that witnesses would not provide evidence at the summary hearing but rather the applicants were to make submissions about the evidence they believed would provide a link between the Code and their allegations. The Decision considered the applicants’ submissions and the materials filed in support of their claims.

New Evidence

15The Litigation Guardian also states that the “CAS verbally submitted that our matter had already been dealt with by the CFSRB. They have also submitted that I had filed a law suit against them in the court. None of this is true”. If so, there is no explanation why this information could not have been produced at the summary hearing or is potentially determinative of the outcome. In any event, the Litigation Guardian did deny the existence of any civil action at the summary hearing despite the fact the Applications indicate a statement of claim is being attached.

Conflict with Existing Case Law

16The applicants have not provided any support for the claim that the Decision conflicts with established jurisprudence.

No Responses

17I also reject the suggestion that because the respondents did not file Responses they have not denied the applicants’ claims. As noted above, the respondents were excused from filing Responses pending the outcome of the summary hearing but attended the summary hearing and made submissions. The respondents’ submissions at the summary hearing were summarized at paragraphs 18 through 20 of the Decision and cannot be understood as an acceptance of liability under the Code.

18The applicant S.C. also states that the “Vice-chair instructed the Respondents not to file a response to my application”, and states that it is “disturbing and unheard of”. The summary hearing was convened on the Tribunal’s initiative. The direction to the respondents is the normal practice for a Tribunal-initiated summary hearing.

Bias

19The Litigation Guardian also alleges that I “made up [my] own stories, rules and laws, acted on behalf of the Respondents and fraudulently refused to allow due process”. He asserts that “it is obvious she is acting on her own because the Respondent did not even ask her to dismiss my Application.” He submits that there is “clearly obstruction of justice” which “may be caused by the fact that the Vice-chair is a member of Law society who may have benefitted from or who has colleagues or friends who benefit from the status quo of discrimination and abuse cases claimed against children by CAS”. He also asserts that “the Child and Family Services Ministry, has made sure the Ombudsman of Ontario doesn’t investigate all of the human rights abuses of little children by the Respondent CAS. And now we have a Vice-chair who clearly belongs to his same group and doesn’t want to investigate our claim”.

20The threshold for a finding of bias is a high one; apprehension of bias must be serious and reasonable. The Supreme Court of Canada, in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, sets out the well-accepted test for bias at 394-395:

(…) 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.... [T]hat 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.”

The grounds for this apprehension must, however, be substantial and I ... refus[e] to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”.

21The Litigation Guardian’s allegations are bald and unsupported. They do not meet this high threshold.

Conclusion

22It is clear the applicants do not agree with the Decision. But they have not established the existence of any of the criteria in Rule 26 that would lead me to exercise my discretion to reconsider it. As a result the Request is denied.