Kailani v. Securitas Canada, 2009 HRTO 1477

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yaser Kailani

Applicant

-and-

Securitas Canada Ltd.

Respondent

RECONSIDERATION DECISION

Adjudicator: Brian Cook

Date: September 15, 2009

Citation: 2009 HRTO 1477

Indexed as: Kailani v. Securitas Canada

1On July 31, 2009, the Tribunal issued its Decision in this Application, 2009 HRTO 1183, dismissing the Application. That Decision found that the parties had signed a Memorandum of Settlement which provided, among other things, that the applicant would not commence any claim or complaint against the respondent. The decision concluded that it would be abuse of process to allow the Application to proceed.

2The applicant has asked the Tribunal to reconsider its Decision.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration (“the Request”) sets out a number of reasons why the applicant believes the Decision should be reconsidered.

4Firstly, he advises that he is taking a number of medications for various medical conditions. It is not clear how this information relates to the Request.

5The Request primarily sets out the applicant’s disagreement with the finding that the Application could not proceed because he had signed the Memorandum of Settlement. In his view, the Charter of Rights and Freedoms provides human rights protections which cannot be taken away by a private agreement between the parties. On this point, I note that the Decision considered the Application under the Human Rights Code, R.S.O. 1990, c. H.19 as amended. The Applicant did not give notice that he intended to claim a remedy under the Charter. The Tribunal’s Rule 4 provides:

Where a party intends to question the constitutional validity or applicability of any law, regulation, by-law or rule or where a party claims a remedy under s. 24(1) of the Charter of Rights and Freedoms, in relation to an act or omission of the Government of Canada or the Government of Ontario, a Notice of Constitutional Question must be delivered to the Attorneys General of Canada and Ontario and all other parties and filed with the Tribunal as soon as the circumstances requiring the notice become known and, in any event, at least 15 (fifteen) days before the question is to be argued.

6The Applicant also argues that he was pressured into signing the Memorandum and that he was experiencing economic problems. He indicates that he signed the Memorandum under duress and that it should not be used as a basis to bar his Application. The applicant made these same arguments at the hearing and they were addressed at some length in the decision. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

7Finally, the applicant suggests that the Tribunal should not have accepted or considered the Response to the Application because, in his view, it was not filed in accordance with the Tribunal’s Rules as it was filed one day late. He notes that the Decision did not deal with this issue. On this point, it is not clear that the applicant is correct that the Response was filed late. After accepting the Application for processing, the Tribunal advised the respondent that it must file a Response 35 days after July 31, 2008. The Response was received by the Tribunal on September 4, 2008, which was 35 days after July 31, 2008.

DECISION

8Under 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.

9The 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.

10The 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.

11As 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.

12In this case, the applicant has not raised any issue that was properly before the Tribunal and that was not raised at the hearing and dealt with in the decision. I therefore conclude that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.