HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
M.H. by his Litigation Guardian Y.S.
Applicant
-and-
Waterloo Region District School Board
Respondent
RECONSIDERATION DECISION
Adjudicator: Maureen Doyle
Indexed as: M.H v. Waterloo Region District School Board
WRITTEN SUBMISSIONS
M.H. by his Litigation Guardian Y.S., Applicant
Self-represented
Waterloo Region District School Board, Respondent
No submissions,
Introduction
1On April 4, 2017, the Tribunal issued its Decision in this Application, M. H. by his Litigation Guardian Y.S. v. Waterloo Region District School Board 2017 HRTO 397, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.
BACKGROUND
2The Tribunal’s Decision found as follows:
The applicant did not establish on a balance of probabilities that he was subject to differential treatment at school;
It was unable to draw an inference that the actions of the respondent’s employees, were due to discrimination on the basis of race or colour;
The evidence did not establish on a balance of probabilities that the allegations in the Application of racial slurs had occurred or that the respondent’s employees ignored racial slurs being directed at the applicant at school.
THE REQUEST FOR RECONSIDERATION
3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:
a. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance
b. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.
THE LAW
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 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.
6The 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.
7As 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.
ANALYSIS AND CONCLUSIONS
8I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.
9As indicated above, the applicant relies on Rule 26.5 (c) and (d). The applicant submits that there were things in the Application which were not addressed in the Decision, and it therefore must be reconsidered. She asserts that the Decision did not address the fact that the applicant identifies as East Indian, Canadian born. This is found in paragraph 1 of the Decision. She asserts that the Decision does not address the fact that the Application indicates that the service being complained about is “education and training”. Paragraph 1 of the Decision indicates that the applicant alleges discrimination with respect to services and the Decision itself addresses the applicant’s allegations regarding discrimination at school.
10The applicant also states in the Request for Reconsideration that the Decision does not reflect the fact that the Application states it was filed more than one year from the last event as “one term ended on June 22, 2013 and the next school term started in September 2013”. No portion of the Application was dismissed on the basis of delay and accordingly this is irrelevant to the Decision.
11The applicant also asserts that the Decision does not address the description in the Application regarding how these events have affected the applicant and the fact that the applicant’s mother and father were required to expend time and energy in addressing these issues, nor does it address the request for financial remedy. The Decision notes at paragraphs 27 and 50 that the applicant’s mother asserts that the events have damaged her son’s personality and that she asserts that addressing the issues has caused a loss of earnings for her and her spouse. It also notes the stated request for financial compensation. The Decision denied the Application and accordingly the remedial issues were not considered further.
12In the Request, the applicant also asserts that the Decision does not address the allegation that the respondent employees have treated him disrespectfully, ruined his life, criticized and punished him even when he was subject to racism, and they have taken the side of other children at the school against the applicant. The applicant also asserts that the Decision did not address the allegation that one teacher told him that no one in the class wanted him in their work group. The latter allegation was noted more than once in the Decision and was specifically addressed in paragraphs 68 and 69 of the Decision. The remainder of the allegations were addressed elsewhere throughout the Decision.
13In support of the Request, the applicant essentially repeats arguments made orally before the Tribunal. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.
14I am not convinced that any findings made in the Decision are in conflict with established jurisprudence or there was any deviation from Tribunal procedure, or that the proposed reconsideration involves a matter of general public importance or that there are factors outweighing the public interest in the finality of Tribunal decisions.
15It is important to note that the issues raised in this Request were the subject of submissions before the Tribunal, and dealt with in its Decision. In Sigrist, above, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.
16In sum, 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 Tribunal’s Decision. The Request is denied.
Dated at Toronto this 11th day of September, 2017.
“Signed By”
Maureen Doyle
Vice-chair