Peter Khaiter v. York University Faculty Association, Arthur Hilliker, Brenda Hart and Catherine Lace, 2009 HRTO 386

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N

Peter Khaiter

Applicant

-and-

York University Faculty Association, Arthur Hilliker, Brenda Hart and Catherine Lace

Respondents

RECONSIDERATION DECISION

Adjudicator: Brian Sheehan

Date: April 3, 2009

Citation: 2009 HRTO 386

Indexed as: Khaiter v. York University Faculty Association

1This Decision addresses a Request by the applicant for a reconsideration of the Decision of the Tribunal, 2008 HRTO 241, to dismiss his Application.

Background

2The applicant filed an Application under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”) on July 25, 2008.

3The respondents requested the early dismissal of the Application, on the grounds that the Application does not disclose a factual basis that could give rise to a finding of discrimination on a prohibited ground under the Code. The respondents also asserted that the Application should be dismissed on the basis of section 45.1 of the Code and on the additional grounds that it was frivolous and vexatious and made in bad faith.

4A Case Resolution Conference was held on October 15, 2008 to hear the parties’ oral submissions regarding the respondents’ request that the Application be dismissed.

5At the Case Resolution Conference, the applicant advanced a number of arguments asserting that it was improper for the Tribunal to hear the respondents’ request for the early dismissal of the Application. Amongst the arguments outlined by the applicant were the following: (1) the respondents’ request for the early dismissal of the Application was improper as it relied upon the Tribunal Rules governing Part IV applications rather than the Tribunal Rules governing Section 53(3) applications; and (2) the Tribunal lacked the jurisdiction to dismiss an application at that stage of the proceeding.

6At the Case Resolution Conference, the applicant was allowed to amend his Application to provide details of his claim that there had been a breach of the Code by the respondents on account of his ancestry and place of origin.

7The applicant was also provided with an opportunity to provide further written submissions regarding the case law relied upon by counsel for the respondents at the Case Resolution Conference. The submissions subsequently filed by the applicant were, however, for the most part simply a reiteration of the applicant’s oral submissions. The applicant also sought to rely upon events that transpired subsequent to the filing of his original complaint.

8On November 7, 2008, the Decision of the Tribunal was issued. The Tribunal rejected the applicant’s argument that it did not have authority to entertain the respondents’ dismissal request at that stage in the proceedings. The Tribunal went on to determine that the Application did not set out a factual basis that could give rise to a finding that the respondents had breached the Code. Accordingly, the Application was dismissed. The Tribunal also rejected an alternative argument of the applicant that prior to dismissing the Application, the Tribunal should direct the applicant on how to supply missing information so that his Application could be maintained.

Analysis

9The applicant filed his Reconsideration Request on December 8, 2008. At that time, the rules governing a request to reconsider a Case Resolution Conference decision were provided for under Rule 26.5 of the Rules of Procedure for Applications under the Human Rights Code Part IV. As of January 1, 2009, the Tribunal amended its rules for s.53(3) applications to include applications made under s.53(5) of the Code. The current Rule 25.5 of the Rules of Procedure for Transitional Applications under Sections 53(3) and 53(5) of the Human Rights Code is identical to the former Rule 26.5 for Part IV Applications.

10Rule 25.5 provides that 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.

11The Practice Direction on Reconsideration issued by the Tribunal suggests the following regarding the Tribunal’s power to grant reconsideration:

(1) Decisions of the Tribunal are generally considered final and are not subject to appeal.

(2) Reconsideration is a discretionary remedy and there is no right to have a decision reconsidered by the Tribunal.

(3) 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.

(4) Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

12The applicant’s reconsideration Request is based on Rule 25.5(a) and (c). The applicant did file extensive submissions in support of his Request. For the most part, however, the submissions consisted of the applicant simply resubmitting arguments previously advanced and dismissed. A Request for reconsideration is not an opportunity for a party to resubmit or reargue its case.

13A portion of the applicant’s submissions consisted of his criticisms of the Tribunal’s Decision. The fact that an unsuccessful party may be critical of certain aspects of a Tribunal decision is neither surprising, nor relevant in itself, for a reconsideration request. A decision to grant reconsideration must be based on the requirements of the specific language of Rule 25.5.

14With respect to Rule 25.5(a), the applicant failed to identify any specific new piece of evidence or fact which could be viewed as potentially determinative regarding the events that were the subject matter of the hearing. The applicant’s submissions did set out additional allegations pertaining to events that transpired subsequent to the hearing. Such allegations are not the proper subject matter of a reconsideration Request and clearly do not constitute new facts or evidence for the purposes of Rule 25.5 (a).

15The thrust of the applicant’s submission with respect to Rule 25.5(c) was the reiteration of his argument that, by considering the respondents’ Request for the early dismissal of the Application, the Tribunal failed to adhere to Rule 9.3 of its Rules and therefore the Decision was in conflict with Tribunal procedure. In my view, the determination of the Tribunal to consider the respondents’ dismissal request did not constitute a conflict with established procedure but was, in fact, entirely consistent with the discretionary power of the Tribunal under Rule 4 to provide for a fair, just and expeditious resolution of an application. That Decision also is not inconsistent, in any manner whatsoever, with the established jurisprudence of the Tribunal. I would add that the reconsideration Request did not, in my view, satisfy the additional requirement under Rule 25.5(c) of raising an issue of general or public importance.

16In view of the above, I find no basis to grant reconsideration of the Tribunal’s Decision of November 7, 2008.