Davidson v. Cummer Avenue United Church, 2017 HRTO 1308

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adam Davidson Applicant

-and-

Cummer Avenue United Church Respondent

RECONSIDERATION DECISION

Adjudicator: Laurie Letheren Date: October 4, 2017 Citation: 2017 HRTO 1308 Indexed as: Davidson v. Cummer Avenue United Church

WRITTEN SUBMISSIONS

Adam Davidson, Applicant Self-represented

INTRODUCTION

1The purpose of this Reconsideration Decision is to address the applicant’s Request for Reconsideration of the Tribunal’s Decision, 2017 HRTO 1000, and Interim Decisions, 2017 HRTO 745 and 2017 HRTO 573. Decision 2017 HRTO 1000 dismissed the Application on the basis that the applicant had not proven on a balance of probabilities that his rights under the Code had been violated by the Respondent. The Interim Decisions, 2017 HRTO 745 and 2017 HRTO 573, addressed requests made by the applicant to compel the respondent to reveal names of individuals and to compel an individual to attend at the hearing to provide evidence.

BACKGROUND

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against him with respect to services because of his ancestry, ethnic origin and creed.

3After hearing the evidence of the applicant, his witness and the respondent’s witnesses, and hearing the submissions of the parties, the Tribunal issued Decision 2017 HRTO 1000, in which it dismissed the Application on the basis that the applicant had not proven, on a balance of probabilities, that he had experienced adverse treatment by the respondent that was connected to his ancestry, ethnic origin and creed.

4In Interim Decision 2017 HRTO 573, I denied the applicant’s Request for the respondent provide the full names of “Jerry” and “Meryl” on the basis the respondent did not have this information.

5In an Interim Decision 2017 HRTO 745, I denied the applicant’s request that I order Jane Henderson to attend as a witness to provide evidence on a future hearing date.

6On August 31, 2017, the applicant filed a Request for Reconsideration of the Tribunal’s Decision 2017 HRTO 1000 and Interim Decisions 2017 HRTO 745 and 2017 HRTO 573.

ANALYSIS

7Section 45.7(1) of the Code provides that any party to a proceeding before the Tribunal may request that the Tribunal reconsider a final decision in accordance with the Tribunal rules.

8Rule 26.5 of the Tribunal’s Rules of Procedure states that 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.

9The Tribunal has also issued a Practice Direction on Reconsideration to provide guidance to the community on the nature of the reconsideration process. The Practice Direction states, in part:

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.

10As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the power to reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the consideration of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

11In the applicant’s Request for Reconsideration, he has indicated that his reasons for making the Request are that “other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions”.

12For his detailed reasons for making this Request, the applicant states:

a. He was denied the right to examine Jane Henderson.

b. That the Tribunal had denied him the right to question the respondent’s witness about the respondent’s affiliation with the Boycott, Divest, Sanction movement.

c. That during the hearing and in its Decision, the Tribunal had failed to acknowledge the applicant’s disability or take it into consideration.

d. He was denied the opportunity to call “Herald/Gerald” and “Mrytle” as witnesses.

Denied the Right to have Witnesses Attend

13In Interim Decision 2017 HRTO 573, the Tribunal denied the applicant’s Request for the full names of names of “Jerry” and “Meryl”. It would appear that in listing reason “d” above, the applicant is requesting a reconsideration of that Interim Decision.

14In Interim Decision 2017 HRTO 745, the Tribunal denied the applicant’s Request to order Jane Henderson to attend as a witness to provide evidence on a future hearing date.

15Rule 26.1 of the Tribunal’s Rules of Procedure provides that a party may request reconsideration of a final decision of the Tribunal.

16In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal considered at length the question of when a decision should be considered final for the purposes of the reconsiderations under Rule 26.1. After carefully considering the policy issues and the relevant authorities the Tribunal concluded:

As a general principle, having regard to the approach taken in other forums as well as the above discussion, it is reasonable to view a “final decision” as one that disposes of some or all of the central issues in the complaint as between the parties. This general principle will take on a more precise shape as the Tribunal applies it to cases before it.

17I have concluded that the Tribunal’s Interim Decisions 2017 HRTO 745 and 2017 HRTO 573 are not final. These Interim Decisions do not dispose of any of the central issues raised in the Application. As a result of this determination, I find that the Tribunal cannot address the applicant’s Request for Reconsideration of Interim Decisions 2017 HRTO 745 and 2017 HRTO 573. See Galuego v. Kensington Health Centre, 2009 HRTO 49.

18For these reasons the Request for Reconsideration of the Tribunal’s Interim Decisions 2017 HRTO 745 and 2017 HRTO 573 is denied.

Denied Right to ask Questions about the Boycott, Divest, Sanction Movement

19The applicant has raised the fact that during the hearing on the merits of the Application, I did not allow him to ask all the respondent’s witnesses about their affiliation with the United Church of Canada’s position on the Boycott, Divest, Sanction (BDS) movement during his cross-examination of the witnesses as a reason for his request for Reconsideration.

20The applicant did have the opportunity to ask two of the respondent’s three witnesses whether they were familiar with the BDS movement. As I explained to the applicant in the hearing, the Tribunal’s Rules allow the adjudicator to control the questioning of witnesses to ensure that the evidence that is relevant to the issues to be determined in an application is entered.

21The applicant has not explained how preventing him from pursuing a line of questioning fits within one of the grounds for reconsideration listed in paragraph 8 above. I do not find that the controlling of a line of questioning of a witness would outweigh the public interest in the finality of the Tribunal’s decision.

Failure to Acknowledge or Consider the Applicant’s Disability

22The applicant has indicated that another reason for his Request for Reconsideration is that I did not consider or acknowledge his disability during the hearing on the merits of the Application or in Decision 2017 HRTO 1000.

23The applicant did not allege that the respondent had breached his Code rights on the basis of his disability in his Application.

24As is noted in paragraphs 6 to 8 of Decision 2017 HRTO 1000, the applicant made a request to record the hearing as an accommodation of his disability. I reviewed a letter from a medical professional that the applicant had presented and I made an Order that the applicant be allowed to record the hearing with the conditions as outlined in paragraph 8 of the Decision 2017 HRTO 1000. As well, during the hearing, the applicant was given a significant amount of time to cross-examine witnesses and was provided breaks in the proceeding as needed.

25Again, the applicant has not explained how this reason for making the Reconsideration Request fits within one of the grounds for reconsideration listed in paragraph 8 above. I do not find that this reason outweighs the public interest in the finality of the Tribunal’s decision.

ORDER

26The Request for Reconsideration is denied.