HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

George Howden

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Minister of Transportation

Respondent

RECONSIDERATION DECISION

Adjudicator: Alan Whyte

Date: May 26, 2010

Citation: 2010 HRTO 1189

Indexed as: Howden v. Ontario (Transportation)

WRITTEN SUBMISSIONS BY

George Howden, Applicant ) On his own behalf

[1] On March 8, 2010, the Tribunal issued its Decision in this Application, 2010 HRTO 515, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

background

[2] The Tribunal’s Decision found that the proceedings before the Licence Appeal Tribunal (“LAT”) appropriately dealt with the substance of this Application, and therefore, the Application was dismissed under s. 45.1 of the Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”).

THE REQUEST FOR RECONSIDERATION

[3] The applicant filed a 39 page brief in support of his Request for Reconsideration (“the Request”). Only one portion of the brief addresses the reconsideration issue, with the balance of the document containing re-argument of the case and providing information which was available at the time of the hearing in January 2010. The following summarises the applicant’s reasons in support of his request:

a. The substance of the Application is different from the substance of the LAT proceedings;

b. Section 45.1 of the Code should not be interpreted to require the Tribunal to accept false or misleading findings of fact from the other proceeding;

c. The proposed accommodation in the LAT case is different from the accommodation proposed in this Application;

d. The respondent’s s. 45.1 request is premature because the applicant has not had a full opportunity to present his case on the merits;

e. There is more recent research on the issue of dilated cardiomyopathy that was not in front of LAT;

f. This Application deals with the issue of discrimination in relation to people with dilated cardiomyopathy and their treatment more severely than people with other disabilities, which was not considered by LAT.

DECISION

[4] Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

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.

[5] 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). Most relevant to this Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

26.5. 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; 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.

6The 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.

7As 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.

[8] I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

9The bulk of the applicant’s submissions constitute re-argument of the same arguments made at the hearing, or represent supplemental arguments based on the points raised at the hearing. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.

[10] The applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

[11] I am not convinced that any findings made in the Decision are in conflict with established jurisprudence.

[12] In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.