Khaiter v. York University, 2009 HRTO 1661

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Khaiter

Applicant

-and-

York University, Barry Miller, Lorna Marsden and Rhonda Lenton

Respondents

reconsideration decision

Adjudicator: David Muir

Date: October 13, 2009

Citation: 2009 HRTO 1661

Indexed as: Khaiter v. York University

1This is an Application filed on April 8, 2009, under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant alleges that he has suffered discrimination in the area of employment on the basis of ethnic origin and place of origin.

2In an Interim Decision, 2009 HRTO 1489, I dealt with several Requests for Orders during Proceedings ("Requests") brought by the applicant, including requests to amend the subject-matter of the original complaint filed with the Ontario Human Rights Commission as well as a Request to intervene filed by the applicant's bargaining agent, York University Faculty Association ("YUFA").

3On October 5, 2009, the applicant filed a Request for Reconsideration under section 45.7 of the Code, which states:

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.

4Rule 25 of the Tribunal's Rules of Procedure for Transitional Applications provides any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision. Rule 25.5 provides:

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.

5The applicant takes issue the manner in which the Tribunal determined the scope of the complaint before it. In his view, by refusing to allow all the amendments sought, the Tribunal has ignored the ongoing nature of the discrimination he allegedly experiences and "indulges the respondents for not stopping and continuing the discrimination … and provokes further instances of discriminatory treatment." The applicant further states that by confining the complaint in this way, the Tribunal has failed in its duty to act impartially and fairly and in fact has acted in a biased way, having prejudged the issues between the parties.

6The applicant also states that the Tribunal has mischaracterized the arguments he made in response to YUFA's request to intervene as "technical" rather than as serious legal questions going to jurisdiction.

7The Tribunal's Rules provide that a reconsideration request may be made in respect of a final decision of the Tribunal. A final decision is one that "disposes of some or all of the central issues in the complaint as between the parties": Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, at para. 41. Neither determination in the Interim Decision at issue is in any sense final, and on that basis the requests for reconsideration ought to be dismissed.

8The applicant also alleges that in the consideration of his arguments and in the result of the Interim Decision, the Tribunal "acts in a biased and prejudged manner". I note, first, the applicant was successful in respect of some of his requests to amend. It is not evidence of bias that a decision or a number of decisions have been made in favour of one party over an other. The applicant evidently disagrees with some of the results in the Interim Decision, but that is not a basis for concluding that the Tribunal is biased or has pre-judged any aspect of this dispute.

9The Request for reconsideration is dismissed.