McNulty v. Ontario (Community and Social Services), 2016 HRTO 637

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: Jay Sengupta

Date: May 11, 2016

Citation: 2016 HRTO 637

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

WRITTEN SUBMISSIONS

Kelly McNulty, Applicant

Self-represented

Introduction

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), in which she alleged discrimination in respect of services on the basis of family status, marital status and place of origin contrary to the Code.

2The Tribunal held a preliminary hearing to determine whether the Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that the Application or part of the Application would succeed.

3Following the preliminary hearing, the Application was dismissed by way of a decision dated April 14, 2016 (2016 HRTO 475).

4On May 2, 2016, the Tribunal received a Request for Reconsideration (Form 20) from the applicant. The respondent has not been called upon to file a Response to the Reconsideration Request and it has not done so.

5The applicant argues that reconsideration is warranted in this case on the ground that other factors exist that outweigh the public interest in the finality of Tribunal decisions and orders.

6This is the Tribunal’s Decision on the Request for Reconsideration.

Request for Reconsideration

7Section 45.7 of the Code provides the Tribunal with explicit authority to reconsider its decisions:

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.

8Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration 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).

9Most relevant to this decision is Rule 26 which reads, in part, as follows:

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 and orders.

10The 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.

11As 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.

12The applicant has based her request on Rule 26.5(d). In the attachment filed in support of the Form 20, the applicant asserts that reconsideration is warranted because neither she nor the various organizations she alleges infringed her rights under Code were properly heard by the Tribunal during the teleconference hearing.

13She objects to the order in which the parties’ submissions were received. She objects to the fact that the City of Toronto and federal immigration authorities, neither of whom were parties to this proceeding, were not in attendance. She points out that she is not a lawyer and that agencies she contacted for legal assistance, such as the Human Rights Legal Support Centre and her local community legal clinic, either did not return her call or provide her with legal advice or representation. Finally, she reiterates her complaint that employers in Toronto continue to employ “foreigners” while she remains temporarily housed in the shelter system, trying to find a job.

14The procedure to be followed during the course of the teleconference hearing, including the order in which the parties’ submissions will be heard, is a matter within the purview of the hearing adjudicator. Although the applicant objects to the order in which the parties were heard, it is not sufficient grounds for granting her reconsideration request.

15In addition, having reviewed the Form 20 and the balance of the arguments contained in the submissions made in support of her reconsideration request, I find that the issues raised by the applicant are essentially reiterations of positions that she articulated during the preliminary hearing and in her previous written materials.

16Although it is apparent that the applicant has a strongly held view that she experienced discriminatory treatment, she has not made submissions that fall within the scope of Rule 26.5(d), or that warrant reconsideration of the Decision made to dismiss this Application on the basis that there is no reasonable prospect that it will succeed. As such, I find no basis to grant reconsideration of the Tribunal’s Decision of April 14, 2016.

17The Request is denied.