David Free v. Municipality of Magnetawan and Richard Smith, 2010 HRTO 1524

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Free

Applicant

-and-

Municipality of Magnetawan and Richard Smith

Respondents

reconsideration decision

Adjudicator: Faisal Bhabha

Date: July 13, 2010

Citation: 2010 HRTO 1524

Indexed as: Free v. Magnetawan (Municipality)

BACKGROUND

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), on January 4, 2010. In a Decision dated June 2, 2010, HRTO 1236, the Tribunal ordered that the Application be deferred pending the completion of a parallel civil proceeding arising out of the same facts as this case.

2On June 9, 2010, the applicant filed a Form 20 seeking Reconsideration of the Decision to defer.

REQUEST FOR RECONSIDERATION

3Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request it reconsider its 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.

5A decision to defer is an exercise of the Tribunal’s discretionary power. It is not determinative of the merits of the Application and, importantly, is not a final Decision. Therefore, a deferral decision is not open to Reconsideration.