HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Cyndy Hunter
Applicant
-and-
Hubertus Vermeer
Respondent
reconsideration DECISION
Adjudicator: Michelle Flaherty
Indexed as: Hunter v. Vermeer
INTRODUCTION
1On March 26, 2010, the Tribunal issued a Decision, 2010 HRTO 669, in which it dismissed the Application pursuant to section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Tribunal concluded that the Application had been filed more than one year after the alleged incident or series of incidents of discrimination and that the delay in filing the Application was not incurred in good faith within the meaning of section 34(2) of the Code.
2The applicant has filed a Request for Reconsideration (“Request”) and submissions in support of her Request. A respondent is not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal. In the circumstances of this Request, the Tribunal did not deem it necessary to seek submissions from the respondent.
REQUEST FOR RECONSIDERATION
3Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request that it reconsider its final decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, 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.
4It is also useful to consider the Tribunal’s Practice Direction on Reconsideration, which 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.
5The applicant identifies the following as the basis for the Request:
a. 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
b. other factors exist that outweigh the public interest in the finality of Tribunal decisions.
6In essence, the applicant argues that the Tribunal’s Decision and the conduct of the hearing were inappropriate and did not give her an adequate opportunity to be heard on the substance of her allegations against the respondent. She states there were errors of law and fact in the Decision. She disputes the Tribunal’s finding that the last incident of discrimination occurred on August 10, 2007 and argues that the Application should not have been dismissed on the basis of timeliness. She states she felt overwhelmed and intimidated during the hearing and was disadvantaged because she was self-represented.
7In terms of conflict with established Tribunal case law or procedure, the applicant states that, in other cases, the delay issue has been dealt with as a preliminary matter and often by way of telephone conference. She argues that the process adopted in her matter was inconsistent with that general practice and resulted in longer delays, causing her further anguish. She also takes issue with the fact that, at the outset of the hearing, the adjudicator suggested a mediation to attempt to resolve the dispute.
8In terms of the public importance of the proposed reconsideration, the applicant refers to the public’s interest in fair proceedings before the Tribunal.
9It is important to stress that a reconsideration is not an appeal. It is evident that the applicant disagrees with the Tribunal’s finding. However, this alone is not a basis for granting a Reconsideration Request; for the applicant’s Request to be successful, it must meet the criteria established at 45.7 of the Code.
10In my view, the applicant’s Request does not meet these criteria.
11First, I am not satisfied that the Tribunal’s decision conflicts with established case law. The applicant argues that the Tribunal erred in identifying the last incident of discrimination. While she says this was an error of fact, she does not argue that the conclusion was in conflict with the Tribunal’s established case law. Second, while the process followed in this case may be somewhat different from that adopted in some other matters, it cannot be said to be in conflict with established procedure. Indeed, the Tribunal has regularly concluded that the evidence on preliminary issues (such as delay) is so intertwined with the substance of the allegations that the preliminary issue can be best addressed once the Tribunal has a more fulsome record before it. See, for example, Bielman v. Casino Niagara, 2009 HRTO 123. Similarly, it is not unusual for an adjudicator to offer the parties an opportunity to engage in settlement discussions before or during a hearing.
12The applicant argues that she was treated unfairly and did not have a full opportunity to be heard. She states that the public’s interest in the fairness of proceedings before the Tribunal warrants reconsideration in this case. It is unfortunate that the applicant felt intimidated and overwhelmed by the proceedings. However, based on the materials before me, I find that the Tribunal process in this case was not unfair or inappropriate. The Tribunal dismissed the Application on the preliminary issue of timeliness. I am satisfied that the applicant had an opportunity to be heard on that issue. The applicant has not satisfied me that, in the circumstances, her concerns outweigh the public interest in the finality of the Tribunal’s decisions.
13The Request is denied.
Dated at Toronto, this 12th day of May, 2010.
”signed by”_________ Michelle Flaherty Vice-chair