The Human Rights Tribunal of Ontario (HRTO) has denied a second request for reconsideration from a former worker who alleged discrimination by the Hamilton-Wentworth District School Board.
Vice-chair Denise Ghanam upheld the Tribunal’s initial dismissal of the worker’s 2018 allegations while allowing reconsideration solely on a 2019 disability accommodation issue.
Background
The employee, A.C., initially filed an application alleging sexual harassment in late summer and fall of 2018, issues with how the respondent handled the matter that fall, and a disability accommodation concern in early 2019. The Tribunal’s original decision (2024 HRTO 1006) dismissed her application. A subsequent reconsideration decision (2024 HRTO 1371) granted reconsideration only on the 2019 disability accommodation allegation.
Following the reconsideration decision, A.C. sought further clarification regarding the 2018 allegations. Under HRTO Rule 26.7.1, a second reconsideration is prohibited unless exceptional circumstances exist. Vice-chair Ghanam noted, “Upon reviewing the Recon Decision and the specifics of the applicant’s Request, it is obvious that the applicant is seeking further clarification of the Recon Decision, in particular, with respect to the 2018 allegations.”
In her analysis, Vice-chair Ghanam emphasized that reconsideration is a discretionary remedy, not an appeal or a right. Citing Landau v. Ontario (Minister of Finance), 2012 ONSC 6926, she stated, “A reconsideration is not an appeal or a hearing de novo. More importantly perhaps, there is no right to have a decision reconsidered.”
A.C.’s request raised two issues under Rule 26.5:
- The decision conflicts with established case law or Tribunal procedure and involves a matter of general or public importance.
- Other factors exist that outweigh the public interest in the finality of Tribunal decisions.
A.C. argued that the Tribunal’s approach departed from the principle that the Ontario Human Rights Code must be given a large and liberal interpretation to broadly protect human rights, citing Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, at paragraph 33.
She also contended that “for the Tribunal to weigh evidence as part of applying the ‘no reasonable prospect of success’ standard is a radical departure from established jurisprudence.”
Tribunal disagrees with appellant
However, the Tribunal disagreed. Vice-chair Ghanam stated, “I find differently. The Tribunal regularly reviews the allegations of applicants and the perspectives of respondents in routine jurisdictional assessments and makes final determinations about whether an application to this Tribunal has demonstrated a factual basis to link the alleged adverse conduct to their Code enumerated grounds and/or the social area and is, therefore, within or outside our jurisdiction.”
She emphasized that the applicant was required to provide a factual basis linking her allegations to a social area under the Code. “In the Decision, clear reasons were given why the applicant failed to make this connection. This jurisdictional assessment approach is not a departure from current Tribunal procedure,” she noted, referencing Mehedi v. Mondalez Bakery, 2023 ONSC 1737.
Vice-chair Ghanam also pointed to the Tribunal’s Practice Direction on Jurisdiction, which states that since January 2021, the HRTO determines jurisdictional issues on a balance of probabilities. “The Decision made in this case is in keeping with recent Tribunal decisions, which have dismissed applications for failing to articulate a connection between a Code ground of discrimination and demonstrated adverse treatment by the respondent,” she explained, citing cases like Splitt v. M.T. Bellies Tap & Grillhouse, 2024 HRTO 1271.
Regarding the second issue, Vice-chair Ghanam found that A.C. did not provide substantive arguments to demonstrate factors outweighing the public interest in the finality of Tribunal decisions. “I could find nothing in the Request in support of this argument, except that it is clear that the applicant disagrees with the initial Decision,” she observed.
She concluded that A.C. had not shown any compelling and extraordinary circumstances warranting a reconsideration of the dismissal of the 2018 allegations. “I am also not persuaded that there are issues in this case that outweigh the public interest in the finality of the Decision,” she stated.
The Tribunal’s order revises the timelines for the parties to produce relevant documents, disclosures, and witness statements related to the 2019 disability accommodation issue. These timelines will now take effect from the date of the latest decision.
Vice-chair Ghanam informed A.C. of her remaining legal option: “If the applicant feels that the Decision was wrongly decided, their only remaining recourse is to apply for judicial review with the Divisional Court.”
The case illustrates the Tribunal’s commitment to ensuring that its resources are applied effectively. Quoting the Divisional Court in Papouchine v. Touram LP d.b.a. Air Canada Vacations, 2022 ONSC 7010, Vice-chair Ghanam remarked, “Justice is not free. Quite the contrary. Justice is expensive. To the extent that the cost of justice is not borne by the parties, it is borne by the public purse. Tribunals, like courts, are responsible for overseeing their own processes so that public resources are applied effectively to matters worthy of adjudication.”
For more information, see Cillis v. Hamilton-Wentworth District School Board, 2024 HRTO 1539 (CanLII).
