HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tracy LeFrense
Applicant
-and-
Blue & White Taxi and Tausef Mumtaz
Respondents
RECONSIDERATION DECISION
Adjudicator: Josée Bouchard
Indexed as: LeFrense v. Blue & White Taxi
WRITTEN SUBMISSIONS
Tracy LeFrense, Applicant
Michelle Mulgrave, Counsel
The Corporation of the City of Mississauga, Former Respondent
Graham Walsh, Counsel
INTRODUCTION
1On March 9, 2016, the Tribunal issued an Interim Decision, 2016 HRTO 310 (“Interim Decision”), dismissing the Application against the Corporation of the City of Mississauga (“City”) and making other orders. On April 8, 2016, the applicant filed a Request for Reconsideration (“Request”) of the decision to dismiss the Application against the City. The City filed a Response to a Request for Reconsideration (“Response”) on May 10, 2016.
2The Interim Decision found that the applicant identifies no specific acts of discrimination committed by the City. The applicant filed a complaint with the City under the applicable by-laws governing the licensing and regulation of owners and drivers of taxicabs and the business of taxicabs. The City investigated the complaint. The Interim Decision found the applicant failed to allege that she was subjected to differential treatment by the City either in the context of the investigation or otherwise.
3In her Request for Reconsideration, the applicant relies on Rule 26.5(c) and (d) of the Tribunal’s Rules of Procedure.
The Reconsideration Test
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 governing such requests as well as a Practice Direction on Reconsideration to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers. Most relevant to this Decision is Rule 26, which states:
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 […]
(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.
6The Tribunal’s Practice Direction on Reconsideration begins with the following statements:
Parties may ask the Tribunal to reconsider a final decision. The Tribunal may also reconsider a decision on its own initiative where it considers it appropriate.
Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.
The rules for reconsideration are found in Rule 26 of the Rules of Procedure. A request for reconsideration will only be granted if the request meets one of the requirements in Rule 26.5 […]
Examples of situations where the Tribunal has reconsidered its decision are:
where a party, through no fault of its own, did not receive notice of a hearing or request for submissions; or
where exceptional factors exist that outweigh the public interest in the finality of decisions including inconsistencies in the Tribunal’s case law.
7Reconsideration 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.
8Under Rule 26.1, only “final” decisions qualify for a reconsideration request. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal determined that even an interim decision may be “final” where it disposes of some or all of the central issues in the application. I am satisfied that the decision to dismiss the Application as against the City is a final decision with respect to that claim and therefore reconsideration is available.
9In her Request for Reconsideration, the applicant raises the following arguments:
a. The finding is inconsistent with established jurisprudence in that the City breached its duty to investigate complaints of discrimination and this failure constitutes a breach of the Code;
b. There was a failure to hold a summary hearing, which amounts to a breach of natural justice.
City Alleged to Have Breached the Duty to Adequately Investigate under the Code
10The applicant submits that the duty to investigate a complaint is at the core of the right to be free from discrimination and/or harassment under the Code. The applicant argues that the complaint of discrimination to the City triggered the City’s duty to investigate the discrimination. The applicant relies on Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 (“Laskowska”), a case that applies an employer’s duty to reasonably and adequately respond to alleged incidents of discrimination. The applicant also relies on Hoekstra v. The Christian Reformed Church in North America, 2012 HRTO 1273 (“Hoekstra”), a case that imposes a duty on organizations to investigate a complaint of discrimination in the context of the provision of services.
11The City submits that the applicant is not in receipt of goods or taxi services from the City, and she is not in an employment or contractual relationship with the City. As such, the allegations made by the applicant with respect to the City do not raise matters which the Tribunal has the power to decide.
12The City submits that it is not an employer or a service provider where there is an allegation of discrimination or harassment involving customers. The City acknowledges its responsibility to investigate complaints related to its by-laws. It maintains that it has investigated the applicant’s complaint under the by-laws. The City’s position is that it does not have to meet the more stringent criteria used in assessing an employer’s response to a human rights complaint.
13I agree with the City’s position that it has not provided goods or taxi services to the applicant and that it is not in an employment or contractual relationship with the applicant. I am of the view that Laskowska and Hoekstra, cited above, are not applicable to this Application.
14The Corporation of the City of Mississauga Public Vehicle Licensing By-law Number 420-04 (“the By-law”) governs the licensing and regulation of owners and drivers of taxicabs and the business of taxicab brokers. When the City receives a complaint under the By-law that is not frivolous or vexatious, an enforcement officer investigates and makes a determination as to whether there has been a violation of the By-law. The service provided by the City to the applicant in this case is the investigation of a possible violation of the By-law. The applicant does not allege in any submission to the Tribunal that she was subjected to differential treatment by the City in the context of the investigation. Moreover, the Application does not allege that the City provided a service to the applicant, other than the investigation of the complaint in violation of the By-law.
Failure to Hold a Summary Hearing
15The applicant argues that she was not afforded the opportunity to make oral submissions as required by subsection 43(2)1 of the Code. This provision only applies to matters that are within the Tribunal’s jurisdiction. However, as noted above, I disagree that the allegations in this Application are within the Tribunal’s jurisdiction. Accordingly, the Tribunal can dismiss them without first affording the parties the opportunity to make oral submissions.
16Having considered the applicant’s Request and the City’s Response, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Interim Decision. The Request is denied.
17I am not seized of this matter.
Dated at Toronto, this 24th day of May, 2016.
“Signed by”
Josée Bouchard
Vice-chair