Tohidy v. Mckenzie, 2010 HRTO 1591

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Davoud Tohidy

Applicant

-and-

Robert Mckenzie, Patti McConville and Julie Bruno

Respondents

RECONSIDERATION DECISION

Adjudicator: Sherry Liang

Date: July 22, 2010

Citation: 2010 HRTO 1591

Indexed as: Tohidy v. Mckenzie

1This is an Application filed on June 30, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). By Decision dated May 25, 2010 (2010 HRTO 1173) the Tribunal dismissed the Application.

2The applicant has filed a Request for Reconsideration of the Tribunal’s Decision.

RECONSIDERATION OF A TRIBUNAL DECISION

3Section 45.7 of the Code provides the Tribunal with explicit authority to reconsider its 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.

4Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers.

5Rule 26 reads, in part, as follows:

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 and orders.

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. The Tribunal has stated that a request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered: Visconti v. Great-West Life Assurance, 2009 HRTO 153.

8In his Request, the applicant relies on the criteria in Rules 26.5(a) (new evidence) and 26.5(c) (conflict with established law).

9I have reviewed the applicant’s materials.

10Some of the applicant’s submissions are directed at the Interim Decision of December 24, 2009, for which the applicant already sought reconsideration, and was denied. Some of the applicant’s submissions were already made or could have been made to the Tribunal at the conference call hearing.

11Some of the applicant’s submissions refer to facts that were before the Tribunal at the time of its Decision. Other facts referred to were known to the applicant at the time of the conference call hearing in this matter. The applicant also refers to certain facts that appear to have come to his knowledge through the Tribunal’s Decision. In any event, none of the additional facts cited in the request could potentially be determinative of the issues in the case.

12The applicant submits that the Tribunal’s Decision neglects to include some of the facts he relies on in his case. In arriving at the Decision, I reviewed all the facts the applicant sought to rely on. The Tribunal is not required to recount every fact referred to by a party, in its decisions. The applicant has not established that the omission of the facts he refers to casts doubt on the correctness of the Tribunal’s Decision.

13In sum, I am satisfied that the applicant has not established that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. Neither has he established that the Tribunal’s decision in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance, or that any other factor supports reconsideration.

14The Request for Reconsideration is denied.