McNulty v. Ontario (Ministry of Community and Social Services), 2016 HRTO 14

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kelly McNulty

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 J. Kershaw

Date: January 6, 2016

Citation: 2016 HRTO 14

Indexed as: McNulty v. Ontario (Ministry of Community and Social Services)

1On December 3, 2015, the Tribunal issued its interim decision, 2015 HRTO 1645, denying the applicant’s request to add a party, namely the Attorney General of Canada – Citizenship and Immigration (“Attorney General of Canada”), because the Tribunal does not have jurisdiction over the government of Canada.

THE REQUEST FOR RECONSIDERATION

2The applicant’s reasons for requesting reconsideration are:

a. 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

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

3More specifically, the applicant argues that there is case law that conflicts with the Tribunal’s decision, namely Azevedo v. Ontario (Finance), 2014 HRTO 954 (“Azevedo”).

the law

4Under 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.

5The 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.

626.5. 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

10Although the applicant seeks a reconsideration of an interim decision and Rule 26.1 permits a reconsideration only of a final decision, the portion of my interim decision with respect to adding the Attorney General of Canada is a final one. I have therefore considered the applicant’s request for a reconsideration with respect to that portion of the interim decision.

11The applicant relies on the Azevedo case in arguing that she should have been permitted to add the Attorney General of Canada as a party. She alleges that because the style of cause in the Azevedo case includes a federal agency as a party, the applicant in that case obviously was permitted to include a federal agency as a party and therefore she should likewise be permitted to do so.

12In Azevedo, the applicant advised the Tribunal she wished to withdraw her Application and it was withdrawn on consent. There is no discussion in that decision with respect to whether the Tribunal had any jurisdiction over the named parties. As such, Azevedo does not change my decision. It is not conflicting case law.

13In addition, the applicant does not provide any factors that outweigh the public’s interest in the finality of Tribunal decisions.

14In sum, I find that the applicant has not established the existence of any conflicting case law or factors that outweigh the public’s interest in the finality of Tribunal decisions pursuant to Rule 26.5(c) or (d) that would lead to a reconsideration of the Tribunal’s Decision. The reconsideration request is denied.