Hwang v. 1636914 Ontario, 2009 HRTO 853

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hwasoon Hwang

Applicant

-and-

1636914 Ontario Inc. o/a Cinnamon Grove Café and Deli, Lou Mouzakis and Adriana Rossi

Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: June 15, 2009

Citation: 2009 HRTO 853

Indexed as: Hwang v. 1636914 Ontario

1This Decision addresses a Request for reconsideration of the Tribunal’s Case Resolution Conference Decision dismissing the Application on the basis that the decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance, and that other factors exist that outweigh the public interest in the finality of Tribunal decisions.

2On May 25, 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”).

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.

3Under 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).

4The 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.

5As 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.

6In 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.

7The 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.

8I am not convinced that any findings made in the Decision are in conflict with established jurisprudence, within the meaning of Rule 26.5(c). The Tribunal also stated in Sigrist and Carson, supra that 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. While the applicant clearly disagrees with the conclusions of the Tribunal, I am satisfied that its submissions on this Request do not establish that the Tribunal’s Decision conflicts with established jurisprudence.

9In support of her Request, the applicant essentially primarily repeats evidence given by her and her witnesses and considered fully in the Tribunal’s Decision. As indicated above, a request for reconsideration is not an opportunity to restate or re-argue evidence already advanced and considered.

10In the Request for reconsideration, the applicant also raises an issue regarding the fact that one of her witnesses was questioned by the respondent Mouzakis regarding other claims that he had filed with the Tribunal. The applicant alleges that my decision was to punish her for involving this witness in her case. There is no basis to support this allegation. This witness had very little relevant evidence to provide and the extent of his relevant evidence is addressed in my Decision at para. 29. The fact that this witness may have other claims at the Tribunal had no bearing upon my assessment of his evidence. The applicant further alleges that the Tribunal may have leaked information about these other claims to the respondents. Once again, there is no basis for this allegation. I do not know how the respondents became aware of this information, but I note that the Tribunal’s decisions are publicly available through the website and a search of this witness’ name shows a number of decisions rendered in various applications that he has made.

11There are no factors raised in the applicant’s Request for reconsideration that, in my opinion, outweigh the public interest in the finality of Tribunal decisions.

12Accordingly, 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.

13The Request for reconsideration is denied.