Duguay v. Hockey Canada, 2015 HRTO 985

Human Rights Tribunal of Ontario

B E T W E E N:

Hilaire Duguay

Applicant

-and-

Hockey Canada

Respondent

RECONSIDERATION DECISION

Adjudicator: Sheri Price

Date: July 24, 2015

Citation: 2015 HRTO 985

Indexed as: Duguay v. Hockey Canada

1On November 7, 2014, the Tribunal issued a Decision dismissing this Application on the basis that it had no reasonable prospect of success. In his Application, the applicant alleged that a $16.15 flat-rate insurance fee charged to all minor hockey players by the respondent discriminated against the applicant because of his age. The applicant filed a Request for Reconsideration of the Decision, pursuant to s.45.7(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”).

2Rule 26.5 of the Tribunal’s Rules of Procedure states that 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 has also issued a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers. The Practice Direction 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.

4In his Request, the applicant asks that the Tribunal reconsider its November 2014 decision pursuant to Rule 26.5(a), (c) and (d) of the Tribunal’s Rules of Procedure. However, the applicant has not established that any of the circumstances identified in Rule 26.5(a), (c), or (d) exist in the case at hand.

5The applicant does not identify any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

6Likewise, the applicant has not established that the Tribunal’s decision is in conflict with established jurisprudence or Tribunal procedure. In his reconsideration request, the applicant indicates that he disagrees with the Tribunal’s reading of Zurich Insurance Co. v Ontario (Human Rights Commission), 1992 CanLII 67 (SCC), [1992] 2 SCR 321, and Olorenshaw v. Western Assurance Company, 2013 HRTO 280, and maintains that such cases support his position. However, I remain of the view that the cases in question do not stand for the propositions advanced by the applicant. The Decision is not in conflict with this jurisprudence.

7Nor is the Decision in conflict with established Tribunal procedure. In his reconsideration request, the applicant suggests that the Tribunal required the applicant to “bring forth all of his evidence and put his best foot forward with respect to every aspect of his case including expert opinion” and that this was inconsistent with established Tribunal procedure. However, this is not accurate. The applicant was not required to present his evidence during the summary hearing, nor does the Tribunal permit parties to present evidence during a summary hearing. What the applicant was required to do during the summary hearing was to point to the evidence by which he intended to prove that the respondent discriminated against him because of his age. This is entirely standard Tribunal procedure and was in keeping with the Case Assessment Direction that the Tribunal issued in this case, directing that the summary hearing would be held. In particular, the Case Assessment Direction directed that the applicant should be prepared, during the summary hearing, to point to the evidence by which he intended to prove that the respondent discriminated against him because of his age, and advised the applicant that part of what the Tribunal considers during summary hearings is whether the evidence the applicant has or that is reasonably available to him gives the applicant a reasonable prospect of success in his Code claim. In this case, for the reasons given in the Decision, the Tribunal concluded based not just on the evidence the applicant indicated he intended to present, but also the facts alleged, that the applicant had no reasonable respect of proving that the respondent discriminated against him “because of” his age.

8As explained in the Decision, in this case, the applicant alleged that the respondent’s flat-rate insurance fee disadvantaged minor hockey players playing at the “house league” level as compared to “rep” players. In his reconsideration request, the applicant attempts to suggest that it has been his position all along that “house league” players are younger and “rep” league players are older minor hockey players; and that this supports his contention that older minor hockey players are more likely to be injured and that the flat rate insurance fee disadvantages younger players because of their age. First of all, this is inconsistent with the position taken by the applicant during the summary hearing. As noted in para. 17 of the Decision, the applicant did not allege in the Application or during the summary hearing that the distinction between “rep” players and “house league” players was age-based. It is not open to the applicant, on reconsideration, to attempt to repair what he perceives as a deficiency in the way in which his case was presented. In any event, as explained in the Decision, even if the applicant were able to show that “house league” players tend to be younger than “rep” players and that “house league” players are less likely to be injured than “rep” players, there were no facts alleged that would allow the Tribunal to conclude that the decreased risk of injury was “because of” their young age, which would be required in order for the applicant’s age discrimination claim to succeed.

9With respect to Rule 26.5(d), the applicant has not established that any other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

10Accordingly, there is no basis to reconsider the November 2014 decision dismissing the Application. The Request for Reconsideration is denied.