HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rajoo Makhi

Applicant

-and-

Ontario Human Rights Commission,

Andrea Broadley, Roxanne Kalimootoo and Keith Norton

Respondents

RECONSIDERATION decision

Adjudicator: Mark Hart

Date: August 31, 2010

Citation: 2010 HRTO 1783

Indexed as: Makhi v. Ontario Human Rights Commission

[1] This Decision addresses a request for reconsideration by the applicant in relation to the Tribunal’s Decision, [2010 HRTO 1047](https://www.minicounsel.ca/hrto/2010/1047) dated May 11, 2010, dismissing the Application.

[2] The applicant filed a Request for Reconsideration which is dated June 16, 2010 and was received by the Tribunal on June 24, 2010. While this Request was not filed using the form required under the Tribunal’s Rules, I will nonetheless proceed to consider the applicant’s Request.

[3] Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”) provides as follows:

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.

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

[5] The 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.

[6] As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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.

[7] In Sigrist and Carson v. London District Catholic School Board, [2008 HRTO 34](https://www.minicounsel.ca/hrto/2008/34), the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an Application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

[8] The Tribunal’s Rules of Procedure for Transitional Applications provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 25.5 of the Rules provides:

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.

[9] As a result, I need to determine whether the material filed by the applicant in support of his Request for reconsideration satisfies any of the criteria set out in Rule 25.5.

[10] I note first that the applicant’s Request for reconsideration was filed beyond the 30 day time limit required by Rule 25.1 of the Tribunal’s Rules. No reason is provided by the applicant for his failure to file his Request for reconsideration within this time limit, beyond a vague allegation that he was not “allowed sufficient time” to prepare a more detailed response and was not “permitted” to file a response in accordance with this Tribunal’s accommodation policy. No details are provided as to who it is alleged failed to “allow” the applicant sufficient time to file his request for reconsideration nor as to who or how anyone at this Tribunal allegedly failed to permit the applicant to file his request in accordance with this Tribunal’s accommodation policy. I do not see any merit in these allegations, and find that they do not provide any adequate justification to extend the time limit for filing the Request for reconsideration as required by the Rules. Accordingly, I find that the applicant’s Request for reconsideration should be dismissed on this basis alone.

[11] Notwithstanding this finding, I nonetheless will proceed to address the substance of the applicant’s Request for Reconsideration. The applicant first states that he is filing his Request “under protest and under duress”. He does not indicate the basis for his protest and alleged duress. If these allegations relate to the matters I have just addressed in the preceding paragraph, once again I find that the applicant has failed to provide any sufficient particulars or material to support his allegations.

[12] The applicant does not address his Request to the specific grounds for reconsideration articulated in the Rules, and includes a significant amount of extraneous information. As a consequence, I will address the various bases for his Request to the extent that this can be discerned from the document filed by the applicant.

[13] In paragraph 18 of his Request, the applicant states that the respondents “neglected to inform the Applicant his rights as to duty to accommodate”. This is not an allegation raised in the complaint that he filed, which formed the subject-matter of the Application before me.

[14] In paragraph 26 of his Request, the applicant states that the Tribunal decided not to submit this matter to mediation. Upon review of the Application, the Tribunal requested submissions from the parties as to whether the Application fell within this Tribunal’s jurisdiction. This is the issue upon which I heard oral submissions from the parties at the hearing on February 11, 2010. The fact that this Tribunal raised a jurisdictional issue with the parties and requested submissions does not provide any basis for reconsideration of my decision.

[15] In paragraph 26, the applicant also raises a number of other allegations, but fails to provide any details or particulars to support his allegations.

[16] In paragraph 31, the applicant refers to the hearing before me as a “charade”, but does not provide the basis for such allegation. At the hearing on February 11, 2010, I heard oral submissions first from counsel for the respondents and then from the applicant on the jurisdictional issue before me, and afforded the respondents a right of reply to the applicant’s submissions. I also raised questions with the parties in order to clarify and better understand their respective submissions. There is no proper basis upon which the hearing I conducted could be described as a “charade”.

[17] In paragraph 32, the applicant alleges that I misinterpreted the Code and the Charter, but fails to provide any specific basis upon which it is alleged that I engaged in such misinterpretation. In fact, I did not need to interpret the Charter at all in the decision I made.

[18] In paragraphs 33 and 34, the applicant alleges that I took too long to render my decision. I did tell the parties at the end of the hearing that I would endeavour to have my decision out to them within 30 days. Unfortunately, given my schedule, this did not prove to be possible and my decision was released three months after the hearing had been held. This time period for the issuance of my decision does not provide any basis either to regard my decision as void or a nullity or to grant the applicant’s reconsideration request.

[19] In paragraph 36, the applicant states that I ignored that he participated in the hearing “under strong protest”. I was aware from the Tribunal’s file in this matter that the applicant had previously raised a number of issues regarding the Tribunal’s actions in dealing with his Application. Nonetheless, my task as an adjudicator was to address the jurisdictional issue before me and to ensure that the parties were afforded a fair opportunity to do so, which I did. The applicant appeared at the hearing with a support person and had no difficulty making his submissions on this issue. Whether or not he was participating under protest, he was afforded fairness in the hearing before me.

[20] In paragraph 37, the applicant objects to the fact that there was no transcript of the hearing on February 11, 2010. It is not the practice of this Tribunal to prepare transcripts of its proceedings, particularly where as here the purpose of the hearing is only to receive oral submissions on a preliminary jurisdictional issue. This does not provide any proper ground for reconsideration of my decision.

[21] In paragraph 38, the applicant alleges that I ignored my own decision in Garandi v. Ontario Human Rights Commission, [2009 HRTO 858](https://www.minicounsel.ca/hrto/2009/858). In fact, this decision was provided to the applicant by the Tribunal and was the subject of submissions before me, and my decision in the instant case is consistent with my previous decision in Garandi.

[22] In paragraph 39, the applicant alleges that I ignored an issue regarding the complaint form he had been given by the Commission. This issue was not raised before me, and is not relevant to the determination I made.

[23] In paragraphs 40 and 41, the applicant alleges that I ignored the fact that his complaint was initially made to the Trustee of Investigations (a body established by the Ontario Human Rights Commission to deal with complaints against the Commission and/or its staff) and that his complaint had been transferred to this Tribunal when he filed his Application. I was aware of both of these facts from the material on file. They are not relevant to the jurisdictional issue I determined.

[24] In paragraph 42, the applicant alleges that it was submitted that he had no intent of re-opening any of the complaints that the respondents had refused to deal with, and that his complaint is not an appeal and does not challenge the outcome of any appeal or adjudicative process but is a complaint against the staff of the respondents. This allegation is not consistent with the substance of the complaint itself or the submissions the applicant made before me, as set out in my decision.

[25] In paragraph 43, the applicant alleges that decisions made in favour of the respondents cannot be applied retroactively. In his submissions before me, the applicant took the position that the Garandi decision, which was rendered in 2009, could not be applied retroactively to his complaint filed in 2007. This submission fails to understand the nature of precedent established by caselaw. The Garandi decision, while rendered in 2009, merely interprets this Tribunal’s jurisdiction under the Code. Reliance on the Garandi decision or any of the decisions cited in my decision in the instant case does not constitute retroactive application of these decisions, but merely a citation of these decisions to aid in the interpretation of the legislative scheme under which the Application was filed.

[26] In paragraph 44, the applicant submits that I ignored that even on a cursory glance at the facts in Garandi, there is a clear inference of a violation of the Code and the Charter. This submission is not consistent with my decision in Garandi. The applicant states that he submitted before me that I had erred in the Garandi decision. While it is accurate that the applicant made this submission, I respectfully disagree.

[27] In paragraph 47, the applicant submits that I ignored that his complaint was against Commission staff, and not against the decision-maker. I addressed this point expressly in my decision, and found that the pith and substance of his complaint in fact was against the Commission as decision-maker and that his complaints about Commission staff were ancillary to the pith and substance of his complaint. I see no proper basis upon which to change this determination.

[28] In paragraph 48, the applicant submits that I ignored the fact that he was claiming punitive damages. Punitive damages in fact are not within this Tribunal’s jurisdiction to award.

[29] In paragraphs 49 and 50, the applicant alleges that counsel for the respondents repeatedly interrupted him at the February 11, 2010 hearing and that she repeatedly put words in his mouth, and he alleges that I failed to stop this conduct. This did not occur. Counsel for the respondents attended the hearing and made her submissions by telephone. At the hearing, I first received submissions from respondents’ counsel as to why the Application was not within the Tribunal’s jurisdiction, after which I received submissions from the applicant and then afforded the Commission a brief right of reply. The applicant was not interrupted by counsel for the respondents when he was making his submissions, nor did counsel put words in his mouth.

[30] In paragraph 51, the applicant submits that I neglected to clarify the prior decision of David Shannon, who is a part-time member of this Tribunal. Mr. Shannon released an Interim Decision in this matter dated November 19, 2009: [2009 HRTO 1968](https://www.minicounsel.ca/hrto/2009/1968). This Interim Decision addressed an adjournment request and provided directions regarding the format in which documents were to be provided to the applicant. The applicant also references issues that he had raised with this Tribunal’s Executive Director and Registrar-Transition. None of these issues are relevant to the determination of the jurisdictional issue that was before me on February 11, 2010.

[31] In paragraph 52, the applicant alleges that I neglected to address that he did not receive a copy of the respondents’ response on the jurisdictional issue, or that he had not been provided with documents in the proper font. The issue of the applicant not having received the respondents’ response was not raised before me. In any event, the applicant had full opportunity to hear the submissions of counsel for the respondents on the jurisdictional issue, and to respond to these submissions. While the applicant did raise an issue before me about some materials not being in the font he had requested, I note that the applicant during his submissions referred to a volume of his own material that was in regular font and was nonetheless fully able to make his submissions before me. The applicant did not make any request before me for an adjournment due to any alleged failure to receive materials at all or in the proper font, nor did he request that I order any such materials be provided to him or that he be afforded any further opportunity to make submissions orally or in writing, nor did he seek any other relief from me arising out of this alleged failure to receive materials.

[32] In paragraph 53, the applicant alleges that during the hearing on February 11, 2010, I laughed out loud and mocked him and said ‘where is the discrimination when they (Respondents) have been dismissing all complaints’ when a reference was made to a petition initiated by the Tenants Association of Toronto. This quite simply did not occur. The applicant did make a submission about this petition, which was not relevant to the jurisdictional issue before me. I did not laugh at or mock the applicant in relation to this or any other submission he made at the hearing. In paragraph 56, the applicant alleges that I prevented him from producing a copy of this petition. In fact, I told him that the petition was not relevant to the jurisdictional issue before me.

[33] In paragraph 54, the applicant alleges that I was acting as co-counsel for the respondents at the hearing. No details or particulars are provided in support of this allegation, nor is there any merit to this allegation.

[34] In paragraph 55, the applicant alleges that I prevented him from referring to correspondence exchanged between him and Tribunal employees, including the Registrar-Transition. In fact, I told him that this material was not relevant to the jurisdictional issue before me.

[35] In paragraph 57, the applicant alleges that I ignored the fact that he is not a lawyer. I am aware that the applicant is not a lawyer, and afforded him every opportunity to address the jurisdictional issue before me.

[36] In paragraph 58, the applicant alleges that I ignored the fact that the Office of the Ombudsman became involved and had to return two complaints back to the respondents for a fresh decision. This allegation is not relevant to the jurisdictional issue that was before me for determination.

[37] In paragraph 59, the applicant submits that I ignored that all rebuttals were suppressed by the respondents and that he was told to exhaust all internal avenues before filing his complaint. In paragraph 60, the applicant submits that I ignored the fact that the respondents had continually breached their very own rules, regulations, policies, and mandate. These submissions reinforce the finding in my decision that the applicant’s complaint in pith and substance was about the decision-making process that the Commission engaged in when it dismissed his complaints or otherwise about matters not within this Tribunal’s jurisdiction.

[38] In paragraphs 61 and 62, the applicant submits that I ignored alleged infringements of his rights under the Charter. This Tribunal’s jurisdiction is to interpret and apply the Code. While this Tribunal may have regard to the Charter on matters within its jurisdiction, this Tribunal has no original authority or jurisdiction to deal with alleged Charter infringements. No issue arose before me requiring consideration of the Charter in making the determination I did regarding this Tribunal’s lack of jurisdiction in the instant case.

[39] I have reviewed and considered the various other paragraphs included in the applicant’s request for reconsideration, and find either that they do not add anything to the matters I already have addressed above or are not relevant to the jurisdictional issue I determined.

[40] For all of the above reasons, even if the applicant had filed a Request for Reconsideration in a timely manner as required by the Rules, I find that there is no proper basis upon which to alter the decision I made.

[41] Accordingly, the applicant’s Request for Reconsideration is dismissed.

Dated at Toronto, this 31^st^ day of August, 2010.

“Signed by”

Mark Hart

Vice-chair