HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sandy Kovacs
Applicant
-and-
Inscan Contractors (Ontario) Inc. and John Chapman
Respondents
RECONSIDERATION DECISION
Adjudicator: Mark Handelman
Indexed as: Kovacs v. Inscan Contractors
WRITTEN SUBMISSIONS BY
Sandy Kovacs, Applicant ) On his own behalf
introduction
1The Tribunal issued a Decision, 2010 HRTO 810, dismissing the Application alleging discrimination by the respondents.
2On May 5, 2010, 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”).
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.
(2) 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 on Reconsideration, January 2008 amended June 2008).
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.
7The Practice Direction on Reconsideration 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.
8The applicant’s original Application to the Tribunal was heard pursuant to section 53(5) of the Code, which deals with transitional applications. The Tribunal has Rules of Procedure for these applications, some of the provisions of which are relevant to this Request for Reconsideration. They are:
3.3 Where a party fails to deliver material to another party or person as required by these Rules, the Tribunal may refuse to consider the material, or may take any other action it considers appropriate.
3.4 Where a fact or issue is not raised in the Application (Form A or Form TR-1), complaint, Response (Form B or Form TR-2), the Response to the complaint, or in a supplemental statement of facts and issues filed after mediation, the Tribunal may refuse to allow the party to present evidence or make representations about the fact or issue unless satisfied there would be no substantial prejudice and no undue delay to the proceedings.
18.2 Not later than thirty (30) days after the Tribunal sends a Confirmation of Hearing to the parties, the Applicant must deliver to the other parties a copy of all arguably relevant documents in the Applicant’s possession, except where privilege is claimed.
18.5 The Tribunal may refuse to consider or allow a party to rely upon any document not disclosed in accordance with these Rules at the hearing.
18.6 The Applicant and the Respondent shall each, no later than twenty (20) days prior to the Hearing:
a) deliver to the other party or parties: a list of their witnesses, with a brief statement summarizing each witness’ expected evidence; a list of all documents on which they intend to rely at the Hearing; and, copies of any documents not previously provided under Rule 18.2 and 18.4; and
b) file with the Tribunal a list of their witnesses, with a brief statement summarizing each witness’ expected evidence; and, a copy of all documents on which they intend to rely at the Hearing.
ANALYSIS
9The applicant’s Reconsideration request consists of the Tribunal’s Form TR-8, Request for Reconsideration, a five page cover letter, a 23 page “Request for Reconsideration” and four pages of appendices. I have considered his submissions thoroughly.
10The applicant complains that he was not allowed to tender as an exhibit a note from his physician. Respondents’ counsel objected to introduction of the note on the basis it had not been disclosed in accordance with Rule 18.6(a). I therefore did not allow him to tender it at the hearing, on the authority of Rule 18.5. I have reviewed the note as part of the reconsideration and find that, even if it had been admitted in the hearing, it would not change the result. It only identifies the applicant’s rash was a workplace injury and this was not an issue in dispute.
11Much of the Request for Reconsideration is an attempt to reargue the case on the merits based upon the applicant’s theory that there was a campaign of harassment against him. As noted above, reconsideration is not an opportunity to re-argue one’s case. None of these arguments advances any legitimate ground for reconsideration.
12The applicant alleges that he was not permitted to provide an opening statement and that this is an example of prejudice towards him. In fact I declined to hear opening statements from either party. This approach is wholly in keeping with the highly expeditious adjudicative process applicable to transition applications and consistent with my powers under the Rules.
13The applicant further complains that I continually interrupted him in his questioning of the respondents’ witnesses by telling him the questions were irrelevant. Part of my responsibility as the adjudicator was to keep the evidence focused upon the issues within the Tribunal’s jurisdiction to adjudicate, rather than permit the applicant to relitigate his WSIB applications.
14The applicant suggests that I said in the middle of the hearing that his case was not worth “even $500.” This is not correct. In the course of exploring the possibility of settlement with the parties, I asked respondent’s counsel whether the respondent had offered the applicant “even $500”. This comment does not provide a basis for overturning the decision.
15Finally, the applicant alleges I lost my composure when he threatened an appeal. I will admit to having experienced frustration with the applicant’s conduct in the hearing. I did explain to the applicant that there was no appeal but rather a process for reconsideration. I did not tell him he would have no chance.
16For all these reasons the Request for Reconsideration is refused.
Dated at Toronto, this 18th day of May, 2010.
“Signed by”
Mark Handelman
Member