An important decision by the Human Rights Tribunal of Ontario (HRTO) on the issue of accommodation and essential visitation for residents of congregate care settings was released on March 23, 2021. In that case, the respondent was unsuccessful and the HRTO found in favour of the applicant, who claimed to have not been appropriately accommodated due to COVID-19 protocols that restricted visitation from his family.
On May 7, 2021, the HRTO refused a request for reconsideration in this case. To be clear, this was not an affirmation of the decision itself. Indeed, the merits of the decision were not considered in this case. Rather, the HRTO held that this was not the appropriate legal process to be followed if the agency wished to have the decision reviewed.
Test for Reconsideration
Under section 45.7 of the Ontario Human Rights Code, the HRTO may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules. The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers. Rule 26 of the Tribunal’s Rules of Procedure states:
26.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days from 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.
The Tribunal’s Practice Direction on Reconsideration states reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. It affirms that reconsideration is not an appeal or an opportunity for a party to change the way they presented their case.
The HRTO, found that the defense did not adduce any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier, nor did the defense demonstrate a conflict with established jurisprudence or tribunal procedure, or any other facts that outweighed the public interest in the finality of the HRTO’s decision. As such, the HRTO held that the “respondent has failed to meet the test for reconsideration and the Request for Reconsideration is denied for this reason.”
Whether the respondent will pursue other avenues of review remains to be seen. In the meantime, approaching accommodation requests on an individualized case by case basis remains
PooranLaw will continue to monitor legal developments related to COVID-19 protocols and restrictions. In the meantime, if you require legal assistance in determining how accommodation in the context of COVID-19 applies to your organization, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.