Thursday, 24 January 2013

Oh no, not that guy again!

Ontario's human rights legislation allows unsuccessful parties to a complaint to apply for reconsideration of a decision. But what if the adjudicator who already found against the party is the same adjudicator who determines the application for reconsideration: will the party applying for reconsideration really get a fair shake?

In Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 the Ontario Divisional Court held that this practice did not violate the rule against bias:
[15]           The applicant submits no one should sit in appeal on a review of his or her own decision.  She submits that the Tribunal’s Practice Direction on reconsideration, specifically allowing adjudicators to reconsider their own decisions, is insufficient to avoid the reasonable apprehension of bias.  The well known test for “reasonable apprehension of bias” is whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly.
[16]           We agree with the Tribunal submission on this point.  The mere fact that an adjudicator determines a request for reconsideration of his or her own decision does not, in and of itself, create a reasonable apprehension of bias in the context of this legislative scheme. 
[17]           A reconsideration is not an appeal or a hearing de novo.  More importantly perhaps, there is no right to have a decision reconsidered. Under s.45.7(2) of the Code “the Tribunal may reconsider its decision” but is not bound to do so.  The original decision maker may be in the best position to know whether a reconsideration request raises new issues or submissions. In this case, the applicant has not established anything more than the fact that the Associate Chair was reviewing his own decision.  By itself that does not constitute a breach of procedural fairness under this legislative scheme. We would therefore not give effect to this ground of appeal.

No comments:

Post a comment