Sieluzycki v. Ontario Court of Justice, 2016 HRTO 1520

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Sieluzycki

Applicant

-and-

Ontario Court of Justice

Respondent

RECONSIDERATION DECISION

Adjudicator: Jennifer Khurana

Date: November 28, 2016

Citation: 2016 HRTO 1520

Indexed as: Sieluzycki v. Ontario Court of Justice

WRITTEN SUBMISSIONS

Michael Sieluzycki, Applicant

Self-represented

Introduction

1On July 21, 2016, the Tribunal issued its Decision in this Application, 2016 HRTO 962, dismissing the Application as having no reasonable prospect of success. The applicant has asked the Tribunal to reconsider its Decision.

BACKGROUND

2In the Application, the applicant alleged that the respondent discriminated against him when staff at a family court processing centre refused to process his application for a restraining order against his mother, father and brother because they are not "spouses". The applicant argued in part that as he had been cohabiting with his family members, they fall within the language of the Family Law Act. I dismissed the Application following a summary hearing held under Rule 19A of the Tribunal's Rules. I found that there was no reasonable prospect that the applicant would be able to advance sufficient direct or indirect evidence to establish a link between the respondent's alleged actions and the protections set out in the Code.

THE LAW

3Under 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.

4The circumstances in which a Request for Reconsideration may be granted are set out in Rule 26.5 of the Tribunal's Rules:

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.

5The Tribunal's Practice Direction on Reconsideration includes the following statements:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

6As 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.

THE REQUEST FOR RECONSIDERATION

7The applicant seeks reconsideration under Rules 26.5(c) and (d). In his Request, he disputes my application and interpretation of "conjugal" in relation to the relevant provisions of the Act. He submits that reconsideration is necessary in the absence of a mechanism for complaints of injustice within the judiciary and the Tribunal, as both fall within the jurisdiction of the Ministry of the Attorney General. He also argues that the Tribunal's decision creates a conflict of interest between different departments of the same provincial justice system.

ANALYSIS AND CONCLUSIONS

8The applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

9The Tribunal's jurisprudence is clear that a Request for Reconsideration is not an appeal and is granted only in limited circumstances. There must be more than disagreement with a decision to find that the conditions in Rule 26.5 have been made out. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the Tribunal has made a decision in a case, parties are entitled to treat the matter as completed and final, subject to limited exceptions. Further, the applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

10While the applicant clearly disagrees with the conclusions of the Tribunal, he has failed to identify any established case law or Tribunal procedure to support his claim under Rule 26.5(c).

11The applicant's allegations of a conflict of interest, or what appears to be an allegation of structural bias, appear to be connected to his claim that the Tribunal, as well as the Ontario Court of Justice, both fall within the ambit of the Ministry of the Attorney General of Ontario. He appears to further suggest that the respondent, and the Tribunal in turn, have no interest in reviewing their own decisions and finding against themselves.

12The test for reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at 394-5:

[T]he 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.

13The threshold test for reasonable apprehension of bias is a high standard. The applicant has not pointed to any extrinsic evidence to support an allegation of bias other than the bald assertion that the Decision creates a conflict of interest because the Tribunal and the respondent are both institutions of the Ontario government. This concern would apply equally to all members and Vice-chairs of the Tribunal and indeed to all judges at the provincial level who are hearing claims against an institution that falls under the Ministry of the Attorney General. The applicant did not explain why this is so and I am unable to see how an informed person, viewing the matter realistically and practically could conclude that I, whether consciously or unconsciously, did not decide the Application before me fairly or that a structural bias exists in this case

14In my view, based on the allegations of the applicant there is no basis to conclude that there was either a personal or structural bias in this matter.

15Moreover, I note that the applicant did not raise any concerns regarding a reasonable apprehension of bias related to the structure of administrative tribunals and the judicial system prior to this Request. The issues he now raises as signs of a conflict of interest or of a reasonable apprehension of bias appear rather to relate to his disagreement with my conclusions.

16Finally, with respect to the submission that the Tribunal has no interest in ruling against itself, the Tribunal's Practice Direction provides that requests for reconsideration are typically made by the member who made the original decision. Significantly, this procedure was affirmed by the Divisional Court in Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 at para. 17, where the Court stated:

The mere fact that an adjudicator determines a request for reconsideration of his or her own decision does not, in and of itself, create a reasonable apprehension of bias in the context of this legislative scheme.

17The applicant has not identified any other factors that outweigh the public interest in the finality of Tribunal decisions.

ORDER

18For all of the above reasons, the applicant's Request for Reconsideration is denied.