Dioba v. Ontario (Government Services), 2009 HRTO 1291

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nacon Dioba

Applicant

• and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Government Services, Office of the Registrar General, Judith Hartman, and Shelly Dolph

Respondents

Reconsideration DECISION

Adjudicator: Michael Gottheil

Date: August 21, 2009

Citation: 2009 HRTO 1291

Indexed as: Dioba v. Ontario (Government Services)

1This is a Request for Reconsideration filed by the applicant, in respect of a decision dated June 25, 2009, 2009 HRTO 913 dismissing the Application in this matter.

2The applicant identifies three grounds in support of his Request that the Tribunal should reconsider its decision:

There are new facts or evidence that could potentially be determinative of the case, and that could not reasonably have been obtained earlier;

The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance;

Other factors exist that outweigh the public interest in the finality of Tribunal decisions.

3Sections 45.7 and 45.8 of the Code provide the Tribunal with authority to reconsider its decisions while confirming the finality of the Tribunal’s decisions:

45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

4Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration as well as a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers (Practice Direction #4 Reconsideration).

5Practice Direction #4 states, in part:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

Rule 25 provides, in part:

25.1. Any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision.

25.3. A request for reconsideration must include:

(a) reasons for the request, including the basis on 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.

25.5. 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;

(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.

ANALYSIS

6On my review of the Request, I am not satisfied that any of the criteria supporting reconsideration of the decision have been established. In his Request, the applicant relies on a number of alleged deficiencies in the hearing of the Application, and seeks to re-argue a number of points that were raised at the hearing.

7First, the applicant states the Tribunal should reconsider the decision because one of the respondents, and the Minister of Government Services, did not attend the hearing, and as such, were not available to be cross examined.

8The respondents attended the hearing, represented by counsel. The respondents presented evidence through Ms. Dolph. There is no requirement that any party call any particular witness, unless there has been an undertaking (promise) to do so. No undertaking was provided in this case, and no party advised that a witness, who had been subpoenaed, failed to attend. A request for reconsideration cannot be based on the fact that one of the parties decided not to call a particular witness.

9Second, the applicant identifies several facts that he says were established at the hearing, and argues that they prove his claim of discrimination. A request for reconsideration is not an appeal, and is not an opportunity for a party to re-argue all or part of the case. The applicant’s disagreement with the conclusions I drew from the evidence are not a basis for reconsideration.

10Finally, the applicant refers to comments counsel for the respondents allegedly made after the hearing was completed, to the effect that the applicant had lost his case. The applicant appears to be concerned that these comments affected my deliberations and decision.

11Assuming counsel for the respondents made the comments as alleged, I was completely unaware of those comments prior to reading this request for reconsideration. Therefore, those comments could not have, and did not, play any role in my decision.

12For the above reasons, the request for reconsideration is dismissed.