HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nacon Dioba

Applicant

-and-

Pusateri’s Limited, Tony Adamo, John Mastroianni and Frank Luchetta Respondents

RECONSIDERATION DECISION

Adjudicator: Alan Whyte

Date: August 24, 2009

Citation: 2009 HRTO 1297

Indexed as: Dioba v. Pusateri’s Limited, Tony Adamo, John Mastroianni and Frank Luchetta

WRITTEN SUBMISSIONS BY

Nacon Dioba, Applicant ) on his own behalf

[1] On July 24, 2009 the Tribunal issued its Decision in this Application Dioba v. Pusateri’s 2009 HRTO 1140, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

background

[2] The Tribunal’s Decision found that the facts proven by the applicant were insufficient to prove discrimination on a balance of probabilities.

THE REQUEST FOR RECONSIDERATION

[3] The Request for Reconsideration provides the following grounds as to why the Tribunal should reconsider its Decision:

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

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

4The applicant makes a number of submissions in support of his request for reconsideration. In general, his submissions constitute an attack on the evidence given by the respondents’ witnesses at the hearing. The applicant also suggests that from the tone of the Tribunal's decision, it can be concluded that there was bias in favour of the respondents. He further suggests that the adjudicator “demonstrated scoff and sarcasm” towards the applicant at the hearing when the adjudicator prevented the applicant from cross-examining the respondents. Finally, the applicant makes certain submissions about the respondents’ evidence received at the hearing.

DECISION

[4] Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

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.

(2)Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

[5] The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008). Most relevant to this Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of 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.

6The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

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.

7As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

8In this case, the applicant’s submissions do not in any way support the grounds upon which he relies to demonstrate that reconsideration of the Decision should be made. Rather, the submissions constitute an attack on the respondents’ evidence (which should have been mounted at the hearing) and criticism of the manner in which the adjudicator conducted the hearing (which also should have been raised at the hearing). The Tribunal's jurisprudence clearly demonstrates that neither of these points will justify reconsideration of a Decision.

9Furthermore, a request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. The applicant was given full opportunity to advance his position at the hearing, both by way of the presentation of evidence and the making of submissions to the adjudicator.

[10] The hearing was conducted in a fair and impartial manner such that the applicant was able to participate fully in the proceedings. The rulings related to the applicant’s cross examination of the respondents’ witnesses were based on the lack of relevance of the questioning to the issues in the case.

[11] I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration under Rule 26. The Request is denied.