Garandi v. Ontario Human Rights Commission, 2009 HRTO 1915

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Djoro Garandi

Applicant

-and-

Ontario Human Rights Commission and Peter Benesch

Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: November 10, 2009

Citation: 2009 HRTO 1915

Indexed as: Garandi v. Ontario Human Rights Commission

1This Decision addresses a request for reconsideration by the applicant in relation to the Tribunal’s Case Resolution Conference Decision dismissing the Application, 2009 HRTO 858.

2On July 14, 2009, the applicant wrote to the Tribunal to provide notice of his intent to proceed with a request for reconsideration of the Tribunal’s Decision. The actual request for reconsideration was filed on July 16, 2009. Although not required to do so, the respondents filed a response to the applicant’s reconsideration request on July 21, 2009. The applicant in turn provided further materials in reply, on July 27 and 30, 2009.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”) provides as follows:

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.

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

5The 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.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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.

7In 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 to an Application 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.

8The Tribunal’s Rules of Procedure for Transitional Applications provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 of the Rules 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.

9As a result, I need to determine whether the material filed by the applicant in support of his request for reconsideration satisfies any of the criteria set out in Rule 26.5.

10With regard to Rule 26.5(a), and having carefully reviewed all of the material filed by the applicant in support of the reconsideration request, there are no new facts or evidence provided. The applicant essentially repeats evidence that he had previously filed with the Tribunal. As indicated above, a request for reconsideration is not an opportunity to re-state or re-argue evidence already filed.

11With regard to Rule 26.5(b), the applicant did receive notice of the hearing and fully participated in the hearing process, which addressed the Commission’s request to dismiss the Application as being beyond the Tribunal’s jurisdiction.

12Rule 26.5(c) applies where there are findings made in the Decision that are in conflict with established jurisprudence. As stated by the Tribunal in Sigrist and Carson, supra, a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules”.

13The applicant relies on this Tribunal’s decision in Biu v. B & G Foods Inc. (2001) 2001 CanLII 26233 (ON HRT), 41 C.H.R.R. D/191 at para. 27, which cites the Ontario Court of Appeal’s statement that “once a complaint has been referred to the Board of Inquiry, there is no provision in the Code that limits the Board of Inquiry’s obligation to conduct a hearing into a complaint”. This statement applies to the former procedure under the Code, where the Commission could refer a complaint for a hearing before this Tribunal, if it considered that the evidence so warranted. In the instant case, the Commission decided not to refer the applicant’s complaint to the Tribunal for a hearing and upheld this decision on reconsideration. As a result, the statement in Biu v. B & G Foods Inc. has no application here.

14The applicant also submits that he was not provided with the “fruits” of the Commission’s investigation, referring to the witness statements and other evidence gathered during the investigation, until these materials were ordered to be disclosed in the context of this application. While that may be the case, the fact remains that this Application was filed against the Commission and one of its employees, and not against the persons who were named as respondents to the applicant’s complaint as filed with the Commission. As a result, in order for this Tribunal to have jurisdiction over the Application as filed, the applicant was required to identify some basis upon which he alleged that he experienced discrimination by the Commission and its employee. As noted in the Decision, when the applicant was asked by me as to the basis upon which he was alleging discrimination as against the Commission and its employee, he responded that his complaint was about the investigation report prepared by the investigating officer and the decisions made by the Commission, and nothing else. As a result, for the reasons stated in my original Decision, this Tribunal does not have jurisdiction to review the decisions of another adjudicative body.

15While the applicant clearly disagrees with the conclusions of the Tribunal, I am satisfied that his submissions on this request for reconsideration do not establish that the Tribunal’s Decision conflicts with established jurisprudence.

16Finally, with regard to Rule 26.5(d), there are no factors raised in the request for reconsideration that, in my opinion, outweigh the public interest in the finality of Tribunal decisions.

17Accordingly, I find the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration. The request does not satisfy the requirements of Rule 26.5.

18The request for reconsideration is denied.