Abbey v. (Ontario) Community and Social Services, 2016 HRTO 1101

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sheryl Abbey

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services

Respondent

RECONSIDERATION DECISION

Adjudicator: Dawn Kershaw and Leslie Reaume

Date: August 19, 2016

Citation: 2016 HRTO 1101

Indexed as: Abbey v. (Ontario) Community and Social Services

WRITTEN SUBMISSIONS

Sheryl Abbey, Applicant

Self-represented

Introduction

1On June 8, 2016, the Tribunal issued its Decision, 2016 HRTO 787 (the “Decision”). The applicant’s allegation that she experienced discrimination when she was denied the ESUB was dismissed, and her allegation that the rules contained in policy directive 5.4 which prohibit the regular retention of sub-contractors and the deduction of expenses paid to them from gross self-employment income was upheld.

2By way of remedy, the Tribunal ordered the respondent:

a. to immediately cease applying the subcontracting rules;

b. pay to the applicant the out of pocket expenses she incurred in the start-up of Cancer Connect in the sum of $1,356.23;

c. to pay pre-judgment and post-judgment on the award of $1,356.23 in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43;

d. to undertake a review of the self-employment policy directives within the next six months to ensure conformity with the Code and the purpose of the ODSP to support self-employment;

e. to file a report within six months from the date of this Decision with the Tribunal and the applicant, describing its compliance with this order.

3On July 29, 2016, the applicant filed a Request for Reconsideration of the Decision (“request”) with respect to the calculation of the remedy/damages.

THE REQUEST FOR RECONSIDERATION

4The applicant’s reasons for the request are:

a. There are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier;

b. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; and

c. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.

the law

5Under section 45.7 of the Human Rights Code, RSO 1990, c.H.19, as amended (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.

6The Tribunal has issued Rules of Procedure, which govern 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, last amended April 2014). Rule 26 states in part:

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.

7The 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.

8As 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.

9The Tribunal also has stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 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.

decision

10The applicant relies on Rule 26.5(a), (c) and (d).

11With respect to Rule 26.5(a), the applicant does not provide any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. In fact the only new allegation the applicant raises is that the applicant discovered on the Government of Canada’s website a statement by the Ontario Disability Support Program stating it does not follow provincial or federal laws and are not there to grow businesses. Even if this is true, this evidence has no bearing on the outcome of this case particularly with respect to the applicant’s remedy, and therefore is not a reason to allow a reconsideration.

12With respect to Rule 26.5(c), the applicant does not explain how our decision conflicts with established jurisprudence or Tribunal procedure, and how her request involves a matter of general or public importance. The applicant does allege the Tribunal procedure was unfair, but does not explain how the Tribunal’s procedure in this case conflicts with established Tribunal procedure. The applicant alleges unfairness because the Tribunal provided the parties with a copy of a particular Tribunal decision. She alleged that by providing this, the Tribunal showed it was not impartial. In our view, this argument has no merit for the reasons that follow.

13The Tribunal’s Rules of Procedure allow the Tribunal wide latitude in how it conducts its hearings. Rule 1.7(w) permits the Tribunal to “take any other action that the Tribunal determines is appropriate”. The Tribunal routinely directs represented and unrepresented parties to relevant case law to support their ability to participate effectively in the hearing process. In this case, it was deemed appropriate for the Tribunal to provide relevant case law to both parties to ensure that they were provided a chance to comment on it. This is not a reason to permit a reconsideration.

14The applicant also questioned Vice-chair Reaume’s impartiality because her biography indicates a belief in alternative dispute resolution. The applicant submits this hurt her because the respondent “did not believe in mediation and [Vice-chair Reaume] did not believe in adjudication”. The biography on the Tribunal’s website for Vice-chair Reaume indicates that she “specializes in human rights law and alternative dispute resolution.” All of the Tribunal’s members are experienced in both adjudication and mediation. Not only are the applicant’s statements patently false and without merit, the applicant did not explain the adverse effect this had on her, even if true.

15The applicant alleged that there was an error in the Tribunal’s process because the respondent allegedly failed to record all hearing dates as ordered because it did not record the parties’ oral submissions, made on October 5, 2015. Even if there was such a requirement on the respondent, the applicant fails to explain how this conflicts with Tribunal procedure and how this proposed reconsideration involves a matter of general or public importance.

16The applicant also alleged various other past errors in procedure, including in setting up hearing dates, in the exchange of documents and in the respondent not providing an amended Response after the applicant filed an amended Application. The applicant provided no further details with respect to these alleged errors, and again did not explain how these alleged errors conflict with Tribunal procedure or how her proposed reconsideration involves a matter of general or public importance.

17Most of the applicant’s reasons for the reconsideration request are in the nature of an appeal of our Decision, which is not the purpose of a reconsideration request, as is set out in the Tribunal’s Practice Decision on Reconsideration.

18The applicant further argues that:

a. the Tribunal made errors of fact;

b. the Tribunal erred in its interpretation of Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13;

19While the applicant disagrees with our Decision, this clearly is in the nature of an appeal.

20Finally, with respect to Rule 26.5(d), the applicant provides no further reasons other than what is set, above, which we find does not warrant the granting of a reconsideration.

21In sum, we find that the applicant has not established the existence of any factors as set out in Rule 26.5(a), (c) and (d) that would lead to a reconsideration of the Decision.

22The Request is denied.