HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
YangYun Caroline Xia
Applicant
-and-
University of Toronto Students’ Administrative Council,
Paul Bretscher, Richard (Rick)Telfer and Jennifer Hassum
Respondents
RECONSIDERATION DECISION
Adjudicator: Mark Hart
Indexed as: Xia v. University of Toronto Students’ Administrative Council
[1] This Decision addresses a Request for Reconsideration by the applicant in relation to the Tribunal’s Decision 2009 HRTO 2275 dated December 30, 2009 dismissing the Application.
[2] On January 28, 2010, the applicant filed a Request for Reconsideration of the Tribunal’s Decision.
[3] Section 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.
[7] In Sigrist and Carson v. London District Catholic School Board, [2008 HRTO 34](https://www.minicounsel.ca/hrto/2008/34), 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.
[8] The 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 25.5 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.
[9] As a result, I need to determine whether the material filed by the applicant in support of her Request for Reconsideration satisfies any of the criteria set out in Rule 25.5.
[10] The applicant submits that my Decision should be reconsidered pursuant to Rule 25.5(c) because it is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance. However, the applicant does not cite any case law or Tribunal procedure with which my Decision is alleged to conflict.
[11] Nonetheless, I have considered the reasons advanced by the applicant regarding why my Decision should be reconsidered. She submits that “expediting a case should not be a locomotive-like drive to a ruling” and that the Tribunal should not be “linearly driven”. This relates to her allegation that the proceeding was narrowly focused on the Garden Coordinator job itself without factoring in the background information, and the denial of her request that I consider the honorarium issue.
[12] This matter is dealt with in my Decision at paragraphs 5 to 19. Far from a “locomotive-like drive to a ruling”, I started the proceeding by clarifying with the applicant what parts of her complaint represented allegations upon which she was asking me to make a finding of a Code violation and which parts were just background information. We spent a significant amount of time going through this exercise, at the end of which the applicant had clarified for me that the only issue upon which she was asking me to make a finding of a Code violation was in relation to the denial of the Garden Coordinator position. As a result of this clarification, the respondents withdrew the preliminary objections they intended to raise regarding other aspects of the applicant’s complaint. This was all done in a careful, unrushed manner, with all parties having the opportunity to make submissions before me.
[13] As stated in my Decision, the applicant’s attempt to re-introduce the honorarium issue was raised by her in the middle of her cross-examination of the respondents’ first witness. I did not dismiss this request out of hand, but instead invited submissions from the parties following the lunch break, after which I made my ruling. Once again, this was far from a “locomotive-like drive to a ruling”. Rather, it was a concern that, having taken the time to clarify with the applicant what her complaint was about, having had the respondents withdraw their preliminary objections on the basis of that clarification, and having proceeded to start to hear the evidence, it would have been procedurally unfair to allow the applicant to re-introduce an allegation that just hours earlier she had said was only part of the background to her complaint and was not an allegation upon which she was asking me to find a violation of the Code.
[14] The applicant further submits that all matters pertaining to the Garden Coordinator need to be weighed in the balance when considering her case, including the extensive background documentation that she submitted in support of her case. This too is addressed in my Decision at paragraphs 34 to 36. At the end of the day, the question for me was the relevance of this background information to the specific allegation upon which I had been asked to rule as to whether the Code had been violated. Whatever the merits of the applicant’s general allegations of systemic discrimination apart from the specific issue before me, upon which I express no opinion, I found that in the context of the evidence I had heard in relation to the application process for the Garden Coordinator position, these broader allegations simply were not relevant. I see no reason to alter my determination in this regard.
[15] Finally, the applicant submits that the Garden Coordinator position simply should have been given to her, as it previously had been offered to her in 2005. I was aware that the position previously had been offered to the applicant, and that she had declined this position. This does not, however, lead to the conclusion that she simply should have been offered the position again. Nor would the issue before me be whether “ethically” this should have happened, as submitted by the applicant. The issue before me would be whether the respondents violated the Code because of the applicant’s race and colour simply because they decided to run a job competition for the Garden Coordinator position. There was no evidence before me to indicate that was the case, nor was there any evidence to indicate that the applicant’s application for this position would not have been considered had it been submitted on time. Rather, for all the reasons indicated in my Decision, the evidence indicates that the applicant was not considered for this position because, despite the attempts she made by e-mail, her application was not received by the respondents prior to the cut-off time.
[16] Accordingly, the Request for Reconsideration is denied.
Dated at Toronto, this 18^th^ day of May, 2010.
”signed by”_____________
Mark Hart
Vice-chair