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HUMAN RIGHTS TRIBUNAL OF ONTARIO
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**B E T W E E N:**
Hans Harry Der Von Felix
Applicant
-and-
Ontario Human Rights Commission
Commission
-and-
Super Telecommunications Co. Ltd. o/a En Genius Technologies, Peter Tomé, and Fandy Chan
Respondents
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**DECISION**
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**Adjudicator:** Michael Gottheil
**Date:** December 16, 2008
**Citation:** 2008 HRTO 400
**Indexed as:** Der Von Felix v. Super Telecommunications
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[1] This is an Application for Reconsideration filed October 2, 2008 under section 45.7 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The applicant seeks an Order that a provision of a settlement entered into between the parties is null and void. The impugned settlement resolved the applicant's complaint which was referred to the Tribunal by the Commission on December 18, 2007.
[2] The Request for Reconsideration also seeks a written apology from Commission counsel who was assigned to the complaint, the Tribunal Vice-Chair who acted as the mediator and Counsel to the Chair of the Tribunal.
[3] For the reasons that follow, the Request for Reconsideration is denied.
## BACKGROUND
[4] On March 14, 2008 the Tribunal held a mediation to explore the possibility of resolving the applicant's complaint. Mediation at the Tribunal is a voluntary process whereby parties choose to meet and attempt to resolve their dispute, with the assistance of a Tribunal Vice-Chair or Member who is assigned as mediator. In this case the parties did reach an agreement and entered into minutes of settlement resolving the complaint.
[5] It appears from the Request for Reconsideration, one of the terms of the settlement was that the applicant released the respondents from all civil claims or causes of actions.
[6] Following the settlement, in accordance with the Tribunal's January 31, 2008 Rules of Practice applicable to Commission referred complaints, the parties executed a Form 3, wherein they indicated they had entered into a full and final settlement and requested that the Tribunal issue an Order (Form 4) disposing of the complaint. The draft Form 4 was provided by the Commission and was signed by the Tribunal on April 17, 2008.
[7] In and around June 2008 the applicant sent a number of e-mails to the respondents, counsel for the Commission, the Tribunal Registrar, the Vice-Chair who acted as mediator and Counsel to the Chair of the Tribunal, raising concerns with the particular provision of the settlement which he claims prevents him from pursuing a civil remedy in the Courts against the respondents. He claimed (and claims in the Request for Reconsideration) he agreed to that provision under duress, and that the Tribunal and Commission have no jurisdiction to bar his civil action. In the e-mails to the Commission and the Tribunal, he sought information, assistance and advice.
[8] There is no purpose in reviewing in detail the specifics of the communication between the applicant and Commission counsel, and the applicant and Counsel to the Chair (who responded on behalf of the Vice Chair and Registrar). Suffice it to say that both counsel responded to the applicant's inquiries, but indicated that no legal advice could be provided.
[9] On October 2, 2008 the applicant filed his Request for Reconsideration.
## DECISION
[10] In my view, this Request can be disposed of without requiring submissions from the respondents.
[11] Section 45.7 of the Code provides that a party to a proceeding may request the Tribunal reconsider a decision in accordance with the Tribunal's Rules. Rules 98 – 104 of the Tribunal's January 31, 2008 Rules set out how a Request can be made and the circumstances under which the Tribunal may exercise its discretion to reconsider a decision:
> 98. Any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision.
>
> 99. A request for reconsideration must be made in Form 7 and be delivered to all parties, along with a copy of the "Notice of Request for Reconsideration" (Notice 1) before it is filed with the Tribunal.
>
> 100. A request for reconsideration must include:
>
> (a) reasons for the request, including the basis upon which the Tribunal is asked to grant the request for reconsideration;
>
> (b) submissions in support of the request; and
>
> (c) the remedy or relief sought.
>
> 101. A party who has been served with a request for reconsideration need not file a response with the Tribunal unless the Tribunal directs that a response is required. Where a party is directed to file a response to the request, it must include complete written representations in support of its position.
>
> 102. 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;
>
> (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;
>
> (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 and orders.
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> 103. The Tribunal shall not grant a request for reconsideration without providing the affected parties an opportunity to make submissions.
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> 104. The determination of the reconsideration request shall be conducted by written submissions unless the Tribunal decides otherwise.
[12] There are 2 reasons why this request must fail.
### Timeliness
[13] The Rules provide that a Request for Reconsideration must be filed within 30 days of the decision being challenged. In this case the Form 4 was signed April 17, 2008 and the Request was filed October 2, 2008. There may be circumstances where the time limit for filing a Request for Reconsideration may be waived. However, in this case the applicant has provided no reason whatsoever for the late filing. Even if I were to consider that the applicant contacted the Tribunal in June to raise his concerns, there is no explanation for the delay between April and June, or June and October. There is an important value in finality of proceedings. For the Tribunal to consider waiving time limits, there has to be some basis to find that the delay was incurred for a good reason, and the there is no substantial prejudice to the respondents.
### Can an Order Disposing of a Complaint Following a Settlement be Subject to Reconsideration?
[14] Section 45.7 of the Code provides the Tribunal with the power to reconsider "a decision." Reconsideration is not a procedure that can be used to challenge a settlement, since a settlement is not "a decision", but a voluntary agreement entered into between the parties. Except for an order issued pursuant to section 45.9(2) of the Code (which does not apply in this case), the Tribunal does not review or approve settlements, and does not issue a decision incorporating the settlement terms. The only document
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