HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dianne Nagee Burton
Applicant
-and-
Family and Children’s Services of Guelph and Wellington County and Oxford County Children’s Aid Society
Respondents
RECONSIDERATION DECISION
Adjudicator: Geneviève Debané
Indexed as: Burton v. Family and Children’s Services of Guelph and Wellington County
WRITTEN SUBMISSIONS
Dianne Nagee Burton, Applicant
Self-represented
Introduction
1The Tribunal issued Decision 2015 HRTO 1189 dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.
2The Tribunal’s Decision dismissed the Application on the basis that it was not filed within the one year time-limit set out in the Ontario Human Rights Code, R.S.O. 1990 c. H.19, as amended (the “Code”).
THE REQUEST FOR RECONSIDERATION
3The Tribunal has issued Rules governing 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). 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:
(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.
4The 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.
5As 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.
6In the Request for Reconsideration, the applicant provides the following reasons why the Tribunal should reconsider its Decision:
a. There are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; and
b. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration is a matter of general or public importance.
7The respondent was not called upon to respond to the Request.
Decision
8I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.
9A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. Having reviewed the applicant’s submissions I am of the view that she is essentially disagreeing with the Decision. The applicant has not explained how the Decision is in conflict with established case-law and indeed she has cited none. In essence the applicant is rearguing the submissions made at the preliminary hearing.
10The applicant is also now taking the position that because of her traumatized mental state that she could not file the Application within the prescribed time-limit. When an applicant seeks to rely on a medical reason to support a finding of good faith, the Tribunal has found that the applicant must provide satisfactory medical evidence to support the proposition that they could not have filed the Application in a timely manner because of the disability. The Divisional Court has recently agreed with this position in James v. York University, 2015 ONSC 2234, concluding at para 50:
The Tribunal’s decision followed a consistent line of jurisprudence at the HRTO, which stands for the proposition that medical evidence which simply points to a disability is not enough to meet the good faith requirement of section 34(2). The medical evidence must establish a causal link between the disability and the inability to file an application within the one year limitation period set forth in section 34(1) of the Code. There is nothing unreasonable in the application of the Tribunal’s decision in requiring such a causal link.
11The applicant provided no medical evidence to support this assertion either at the hearing or in her Request for reconsideration. Regardless, this is evidence, if it exists, which could and should have been obtained by her in advance of the preliminary hearing. Further, I note that the applicant was capable of initiating and participating in complaint at the Child and Family Services Review Board in 2012.
Order
12The applicant’s Request to reconsider the Decision is denied.
Dated at Toronto, this 16th day of June, 2016.
“Signed By”
Geneviève Debané
Vice-chair