Khaiter v. York University, 2009 HRTO 1736

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Khaiter

Applicant

-and-

York University, Barry Miller and Rhonda Lenton

Respondents

-and-

York University Faculty Association

Intervenor

reconsideration decision

Adjudicator: David Muir

Date: October 21, 2009

Citation: 2009 HRTO 1736

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 experienced discrimination in the area of employment on the basis of ethnic origin and place of origin.

2In Interim Decision 2009 HRTO 1358, dated September 3, 2009, I dealt with a Request for Order during Proceedings filed by an affected party, the York University Faculty Association, seeking leave to intervene in this Application. Leave was granted on terms to be determined by the presiding adjudicator.

3On September 16, 2009 in Interim Decision 2009 HRTO 1489, I dealt with aspects of several Requests for Orders during Proceedings filed by both the applicant and a number of the respondents.

4On October 5, 2009, the applicant filed a Request for Reconsideration under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”). Although the applicant’s submissions were directed to much of the substance of both of the Interim Decisions cited above, in the Form TR-8 itself, the applicant identified only 2009 HRTO 1358 as the subject matter of the Request. In 2009 HRTO 1661, I dismissed the Request for Reconsideration as if it were related to both Interim Decisions.

5On October 16, 2009, the applicant brought a further Request for Reconsideration of the “final aspects of the September 16, 2009 Tribunal Decision 2009 HRTO 1489.” In particular, the applicant seeks reconsideration of my determinations defining the scope of the complaint and hence this Application, removing individual respondents, and his requests for interim orders.

6This decision deals with the October 16, 2009 Request for Reconsideration as it relates to the September 16, 2009 Interim Decision. 2009 HRTO 1489.

7The authority to entertain a Request for Reconsideration is found in section 45.7 of the Code.

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.

8Rule 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.

9In dealing with the Request as it relates to the September 16, 2009 Interim Decision, I have considered the applicant’s submissions of both October 5 and 16, 2009. Although reference is made to paragraph c. and possibly d. above, the applicant’s submissions are largely an effort to re-argue the issues dealt with in that Interim Decision at issue.

10The only new material point raised by the applicant is in fact a response to my earlier determination in 2009 HRTO 1661 that the two Interim Decisions cited above were not final decisions. The applicant states that a decision to remove or not add a respondent can be a final decision. In this regard the applicant relies upon the Tribunal’s decision in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34.

11There will be situations where the removal of or the refusal to add a respondent effectively determines the rights as between the parties and such a decision may be considered final. That is not the situation here. There is a corporate respondent which accepts responsibility for the conduct of its employees and is capable of responding to any potential remedies that might be ordered.

12As regards the individuals that the applicant sought to add, I concluded, amongst other reasons, that the allegations made against them were outside of the scope of the human rights complaint underlying this Application and therefore it was not necessary to fairly adjudicate the issues as framed by the complaint to add any of the proposed respondents. In dealing with the respondents’ request that all of the individuals named in the complaint be removed, I determined that one of the three had only a tangential role in respect of the allegations made in the complaint and exclusively as the recipient of correspondence from the applicant. I concluded that it was appropriate in the circumstances to remove that individual. The two individuals whom the applicant alleges were the central actors in the alleged pattern of harassment and discrimination by the respondent employer were not removed as respondents. The applicant evidently disagrees with my conclusions on these issues but that is not a proper basis for a reconsideration of a decision, interim or final.

13For these reasons, as well as the reasons set out in 2009 HRTO 1661, the Request for Reconsideration of 2009 HRTO 1489 is dismissed.