Mathurin v. University of Toronto, 2009 HRTO 903

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Myrlande Mathurin

Applicant

-and-

University of Toronto and Patricia Harris

Respondents

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott

Date: June 23, 2009

Citation: 2009 HRTO 903

Indexed as: Mathurin v. University of Toronto

INTRODUCTION

1The Tribunal issued a Case Resolution Conference Decision, 2009 HRTO 420, dismissing the applicant’s Application alleging discrimination by Accessibility Services at the University of Toronto.

2On May 15, 2009, the applicant filed a Request for Reconsideration of the Tribunal’s Decision, as provided for in section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”). In her Request for Reconsideration, the applicant advised the Tribunal that she had been unable to obtain assistance from the Human Rights Legal Support Centre and as such, was unprepared to present her case at the time of the Case Resolution Conference (“CRC”). The applicant did not raise this issue before the Tribunal during the CRC. The applicant advises that she is now in possession of the 2008 Annotated Human Rights Code and has a better understanding of human rights. She uses the Reconsideration process as an opportunity to better argue her case by citing excerpts from that text.

DECISION

3The Request for Reconsideration is dismissed.

RELEVANT LEGISLATIVE PROVISIONS

4Sections 45.7 and 45.8 of the Code provide the Tribunal with authority to reconsider its decisions while confirming the finality of the Tribunal’s decisions:

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.

Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

45.8 Subject to section 45.6 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.

5Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration as well as a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers (Practice Direction #4 Reconsideration).

6Relevant to this Decision are the following Rules:

25.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision.

25.3. A request for reconsideration must include:

(a) reasons for the request, including the basis on which the Tribunal is asked to grant the request for reconsideration;

(b)submissions in support of the request; and

(c) the remedy or relief sought.

25.5. 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;

(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;

(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 and orders.

7Practice Direction #4 states, in part:

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.

ANALYSIS

8In her Request for Reconsideration, the applicant states that because she is now in possession of the Annotated Human Rights Code, 2008, she has an improved understanding of human rights law and is better able to argue her case. The applicant uses the reconsideration process as an opportunity to provide legal authority to support her case and to express her disagreement with the Tribunal’s Decision.

9In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal confirms 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.

10When decisions are made by the Tribunal, it is important that they be seen as final. Reconsideration does not provide parties with a “second kick at the can”. It is a discretionary remedy exercised by the Tribunal in the limited circumstances set out in Rule 25.5. It is only where these circumstances exist that the Tribunal will reconsider its decision.

11The applicant has failed to meet the criteria set out in Rule 25.5. At its core, the Request for Reconsideration is an attempt by the applicant to re-argue her case and appeal the Tribunal’s Decision. As stated in the Practice Direction “Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case”. It is on this basis that applicant’s Request for Reconsideration is dismissed.