Volnyansky v. Peel (Regional Municipality), 2016 HRTO 90

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lubov Volnyansky Applicant

-and-

The Regional Municipality of Peel Respondent

RECONSIDERATION DECISION

Adjudicator: Alison Renton

Date: January 21, 2016

Citation: 2016 HRTO 90

Indexed as: Volnyansky v. Peel (Regional Municipality)

WRITTEN SUBMISSIONS

Lubov Volnyansky, Applicant

Self-represented

1In Decision, 2014 HRTO 1716 (“the Decision”), the Tribunal dismissed the applicant’s Application when it determined that it would be unfair to permit it to proceed because of section 45.1 of the Human Rights Code, R.S.O. H. 19, as amended (“the Code”), or because of issue estoppel. In light of these findings, the Tribunal determined that it would be an abuse of its processes to permit the Application to continue.

2Subsequent to the issuance of the Decision, the applicant filed a Request for Reconsideration (“the Request”). The Request is based upon 19 points, each numbered, with one of the points containing six sub-points. The Tribunal has not requested submissions from the respondent.

3For the reasons set out below, the applicant’s Request is denied.

background

4In her Application, the applicant alleged discrimination with respect to services because of family status, marital status, and reprisal or threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

5Specifically, the applicant alleged that the respondent, in assessing her entitlement to benefits under the Ontario Works Act, 1997, S.O. 1997, c. 25, Schedule A, as amended (“OWA”), did not recognize her as a separated parent with three dependents, and in that regard improperly calculated her shelter allowance which created an overpayment which it then threatened to collect. The issue went before the Social Benefits Tribunal (“SBT”) which denied her appeal in a decision issued in February 2009 (“the SBT decision”) and denied her request for reconsideration of the SBT decision in November 2009 (“the SBT reconsideration decision”). During the SBT reconsideration hearing, the applicant raised Code issues before the SBT, but these were not addressed in the SBT reconsideration decision. She also identified Code issues with the Chair of the SBT, which were also, she alleged, not addressed.

6In addition to filing her Application, the applicant has challenged the SBT decision and the SBT reconsideration decision before the courts, including Ontario’s Superior and Divisional Courts, the Court of Appeal, and the Supreme Court of Canada. Details of her court proceedings are set out in paras. 58 to 64 of the Decision.

analysis

7Rule 26.5 of the Tribunal’s Rules of Procedure sets out the limited circumstances in which reconsideration may be granted:

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.

8The applicant bases her Request upon Rules 26.5(a), (c) and (d).

Repetition of Allegations and Arguments

9As set out in the Tribunal’s Practice Direction on Reconsideration, reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. This concept has been applied in a number of Tribunal decisions. See, for example, Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 at para. 56, and Garrie v. Janus Joan Inc., 2012 HRTO 1955 at para. 15. This concept has also been endorsed by Ontario’s Divisional Court. See Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 (Div. Ct.) at paras. 17 and 20.

10I find that the issues and information raised in points 2, 3, 4, 5, 7, 8, 10, 11, 12, 14, 15.1, 15.2, 15.6, 16, and the first paragraph of 17 of the Request, were raised by the applicant during her submissions before the Tribunal.

11In points 2, 11, 15.6, and 16, the applicant repeats her allegations about why she believes the respondent discriminated against her, and repeats her concerns about the overpayment calculations. These points were raised in her Application, in her submissions, during the Tribunal’s in-person hearings held with the parties, and are reflected in paras. 23 and 25 of the Decision.

12In points 3, 4, 10, 11, 12, 14, 15.1, 15.2, and the first paragraph of point 17 the applicant repeats, or clarifies, the essence of the submissions that she previously made before the Tribunal about the SBT, the SBT reconsideration, and the chair of the SBT, including the assertions that the SBT did not determine her Code issues and that the Code issues have not been judicially determined. These points are reflected in paras. 22, 55, and 56 of the Decision. Further, she alleges that the principles of Surdivall v. Ontario (Disability Support Program), 2014 ONCA 240, a case she presented to the Tribunal during one of the in-person hearings, apply to her situation. Surdivall, above, is reflected in the Decision at paras. 23 and 57.

13At point 8, the applicant takes issue with the amount of time it has taken from the time her Application was filed with the Tribunal until the Decision was issued. She asserts that in 2010, subsequent to filing her Application, the SBT assumed the jurisdiction to determine human rights issues. I do not find that this point falls under Rule 26.5(a), (c) or (d).

14The Application was filed on April 27, 2009. As noted in para. 7 of the Decision, the Application was deferred pending the conclusion of all the Divisional Court proceedings and was not re-activated until 2013. See Volnyansky v. Peel (Regional Municipality), 2013 HRTO 738.

15While the applicant is correct that the Ontario Court of Appeal decision in Ontario (Director of Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 (“Tranchemontagne”) was issued after she filed her Application, she referred to Tranchemontagne during her submissions before the Decision was issued. Her attempt to raise new issues about the applicability of Tranchemontagne and the timing of its release in relation to her situation before the SBT is an attempt to repeat, or repair, submissions she already made on this issue. As noted above, the applicant raised Code issues before the SBT during its reconsideration hearing. While she alleges that the Code issues were not addressed, as reflected in para. 56 of the Decision, SBT decisions are final, subject to appeal to the courts.

16The applicant’s Request based upon 2, 3, 4, 5, 7, 8, 10, 11, 12, 14, 15.1, 15.2, 15.6, 16, and the first paragraph of 17 of the Request is denied.

Conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance

17In point 9 of her Request, the applicant alleges that the Tribunal’s determination that the Application is a collateral attack on the SBT reconsideration decision and contradicts the procedure regarding human rights issues or challenges under the SBT Practice Direction 6, which came into effect on February 1, 2010 further to the Supreme Court of Canada decision in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14. She asserts that section 10.1 of the SBT practice direction indicates that a Code challenge will only be addressed by the SBT after the merits of the appeal have been heard by the SBT. The merits of the appeal were heard at the SBT reconsideration hearing.

18The Tribunal has the jurisdiction, pursuant to section 43(1) of the Code, to make rules governing the practice and procedure before it. In addition to its Rules, the Tribunal has a number of practice directions, which are specific to proceedings before it. The Tribunal does not have the jurisdiction, and is not required, to apply practice directions that have been created for a different tribunal. The applicant has not presented any case law in support of this position.

19Accordingly, there is no conflict with established jurisprudence or Tribunal (meaning the Human Rights Tribunal) procedure. The applicant’s Request, on this issue, is denied.

The principle of estoppel was incorrectly applied in the Decision

20In point 15 and the 6 sub-points under it in the Request, the applicant alleges that the Tribunal incorrectly applied the principles of estoppel in the Decision. This includes her assertion that the issues before the SBT were of fact and mixed fact and law, there was no judicial decision of the SBT decisions, the Tribunal’s finding that the SBT decisions are final yet subject to appeal to the court, the judicial review decisions did not create estoppel and warranted the right to re-examination on the question of law, and that the parties were not the same as before the Tribunal.

21During the August 2014 hearing, the applicant made a number of submissions about how estoppel was not applicable to her Application. As noted above, Reconsideration is not the opportunity to repair any deficiencies in her argument, or repeat what has already been submitted. The parties to the Application, after the Tribunal removed another respondent pursuant to an Interim Decision, 2010 HRTO 1171, remained the same and the Tribunal found that the principles of estoppel applied, as well as the principles of section 45.1 of the Code for the reasons set out in the Decision. The applicant has not provided any established case law which conflicts with the Decision.

22For these reasons, the applicant’s Request based upon point 15 and its 6 sub-points, is denied.

New Evidence

23At point 18 of her Request, the applicant submits that the “Administrator OW not only does not accept SBT orders but also claims to above the law by not following the Family Law Act, the Divorce Act or the Income Tax Act”. She provided an excerpt of a factum, filed by the respondent, in one of the proceedings before Divisional Court. The applicant submits that this excerpt is a new fact that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

24I do not see how the excerpt from the factum is a new fact or a new fact that is potentially determinative of the issues raised before this Tribunal. The factum is dated April 8, 2014, which is before the in-person August 29, 2014 hearing held before the Tribunal, and is therefore information that the applicant had before the August 2014 hearing.

25In point 17, first paragraph of the Request, the applicant claims to have another new fact. In this regard, she references, and provides, an email from October 2014 from an individual from the respondent pertaining to the calculation of the applicant’s overpayment. The fact that this email is from October 2014, the applicant asserts, is after the in-person hearing was held in August 2014 and is determinative of the issues in the case.

26While the email is dated after the in-person hearing was held, it is about the amount of the overpayment, which, as reflected in para. 55, and 57 to 62 and 64, was the subject of the SBT and court proceedings and which the Tribunal has considered in dismissing her Application.

27Her Request based upon new facts is dismissed.

Other Issues

28In point 1 of her Request, the applicant submits that the Code has created the right under section 46.1(1) to claim compensation in a civil proceeding for a breach of Part I of the Code. I do not see how this triggers the application of Rule 26.5(a), (c) or (d).

29In point 6 of her Request, the applicant alleges that the Tribunal removed another party as a respondent because that respondent denied the existence of “jurisdiction and policy under the OHRC”. As noted in para. 21 above, the Tribunal removed another respondent pursuant to Interim Decision, 2010 HRTO 1171. It is difficult to understand how point 6 triggers the application of Rule 26.5(a), (c) or (d), or is being raised as an issue in the Request, based upon how the point is worded. Further, any challenge to that Interim Decision ought to have been made subsequent to it being issued, and certainly by the time the in-person hearing was held in 2014. An attempt to do so in the Request is an attempt to repair any deficiencies in the presentation of her case. Her Request is denied on this basis.

30In point 18 of her Request, the applicant submits that in para. 64 of the Decision, the Tribunal referenced another court proceeding between the applicant and the respondent. The applicant submits that there is no explanation why this is a concern for the Tribunal if the issue of human rights was not the subject of the proceeding. I do not see how this point triggers the application of Rules 26.5(a), (c) or (d) and her Request is denied on this basis.

31At point 19, the applicant submits that section 45 of O. Reg. 143/98 was repealed which impacts how SBT determines the status of single persons, with dependants. While I do not see how this impacts upon the Tribunal’s Decision, I note that section 45 of O. Reg. 143/98 is a regulation related to the Ontario Works Act, 1997, S.O. 1997, c. 25, Sched. A, as amended, and that it was revoked by O. Reg. 310/10, which was before the August 2014 hearing date.

ORDER

32For the above reasons, the applicant’s Request is denied.