Alidad Mafinezam v. University of Toronto (Munk Centre), 2010 HRTO 1790

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alidad Mafinezam

Applicant

-and-

University of Toronto (Munk Centre)

Respondent

RECONSIDERATION DECISION

Adjudicator: Sherry Liang

Date: September 1, 2010

Citation: 2010 HRTO 1790

Indexed as: Mafinezam v. University of Toronto

1This is an Application filed on February 8, 2010 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 July 8, 2010, 2010 HRTO 1495 the Tribunal dismissed the Application on the basis of delay.

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

RECONSIDERATION OF A TRIBUNAL DECISION

3Section 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19 (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 criterion in Rule 26.5(d) (factors outweighing the public interest in the finality of decisions).

9I have reviewed the applicant’s Request and find that it does not support granting reconsideration of the Decision. Some of the factors the applicant refers to were part of his earlier submissions and considered by me in arriving at my conclusions.

10Additionally, the applicant refers to this Vice-chair as being a “U of T alumnus – not impartial.” The fact that I am a graduate of the Faculty of Law at the University of Toronto does not give rise to any reasonable apprehension of bias, or in any way cast doubt on my impartiality in determining the issues before me.

11In sum, the applicant has not pointed to any factors that outweigh the public interest in the finality of the Tribunal’s decisions, or the existence of any circumstances under Rule 26.5 that support reconsideration of the decision in this matter.

12The Request is denied.