Pasimanik v. Central Epicure Food Products Ltd., 2010 HRTO 139

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alexander Pasimanik

Applicant

-and-

Central Epicure Food Products Ltd.

Respondent

RECONSIDERATION DECISION

Adjudicator: Mary Truemner

Date: January 21, 2010

Citation: 2010 HRTO 139

Indexed as: Pasimanik v. Central Epicure Food Products

INTRODUCTION

1This Decision deals with a Request for Reconsideration (the "Request") of the Tribunal's Decision, 2009 HRTO 1727, ("the Decision").

2The Decision dealt with whether or not the respondent had contravened a Settlement of a complaint filed by the applicant at the Ontario Human Rights Commission (the "Settlement"). The dispute was in essence about a letter of reference (the "Letter"), namely, its content and the timing of its delivery to the applicant. This Request continues that dispute.

3Without repeating the Tribunal's reasons, the Tribunal found that there had been no agreement with respect to the content of the Letter and therefore dismissed the applicant's substantive claims. However, the Tribunal did find that "in so far as the Letter of Reference provide[d] the wrong date for the applicant's commencement of employment," there had been a contravention of the Settlement, and ordered the respondent to correct the date. No other remedy was provided. The applicant now alleges that there are new facts or evidence with respect to the parties' agreement on the Letter's contents and the timing of its delivery that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

DECISION ON RECONSIDERATION

4Under 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.

5Rule 26 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. [emphasis added]

6It is also useful to refer to the Tribunal's Practice Direction on Reconsideration which 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.

Alleged New Facts

7None of the allegedly new facts (concerning when various other letters referred to in the Settlement were created, signed and provided to the Commission, a three-week period of employment not mentioned in the Letter, and recordings of his work description provided to third parties) were unavailable at the time of the hearing. Moreover, even had they been available, they would not be determinative of the outcome given the finding there was no agreement on the content or timing of the Letter.

8Finally, the applicant argues that the Letter contains medical information that should not have been disclosed and relies on the Commission's Policy on Employment-Related Medical Information in support. This issue was not raised in the Application or at the hearing. A request for reconsideration is not an opportunity to reframe or reargue a case.

Language Interpretation

9The Request for Reconsideration also raises an issue about language interpretation at the hearing. The applicant states:

I felt much pressured by the Respondent's Counsel who used my disadvantage and her advantage in English as well as knowledge in Canadian law procedures. I expected my wife to help me during my testimony, but due to some legal restrictions, she could not do it. If I had known it in advance, I would have asked the Tribunal for the Russian translator. I found it very frustrating not being able to prove my points due to the lack of the English skills.

10The Tribunal has a Practice Direction on Requests for Language Interpretation which allows parties to make a request for interpretation services. In this case, the applicant did not make a request for language interpretation either prior to or during the hearing. While the applicant's wife provided some interpretation in the early part of the hearing, the Tribunal discovered that she was providing her own evidence in addition to interpreting. When given the choice between his wife interpreting or giving evidence as a witness, the applicant preferred she give evidence. The applicant continued with his evidence and did not request the assistance of an interpreter.

11I am satisfied the applicant understood the questions asked of him, provided complete and responsive answers to those questions, understood the issues in dispute and explained his position on them thoroughly, and, with the assistance of his wife, provided complete and comprehensive final submissions. Neither the applicant nor his wife raised any concerns with the Tribunal about understanding the hearing or the hearing process before or during the hearing. As in any hearing I questioned the applicant where necessary to clarify a point of evidence. The applicant's responses did not suggest he had any problem comprehending or responding effectively. Had I felt there was any reason for concern I would have intervened to address it. I am satisfied the applicant had a full and fair opportunity to be heard on all the issues in dispute.

12For all these reasons, the Request for Reconsideration is denied.