Davoud Tohidy v. Robert Mckenzie, Patti McConville and Julie Bruno, 2010 HRTO 247

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: February 2, 2010

Citation: 2010 HRTO 247

Indexed as: Tohidy v. Mckenzie

1This is an Application alleging discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). In its Interim Decision of December 24, 2009 in this matter, 2009 HRTO 2264, the Tribunal made a number of directions, including the removal of a number of respondents from the proceedings.

2The applicant has filed a Request for Reconsideration and a Request for an Order During Proceedings.

REQUEST FOR RECONSIDERATION

3Rule 26 of the Tribunal’s Rules of Procedure, governing requests for reconsideration, reads in part:

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.

4In the Request, the applicant asserts there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier, that the Interim Decision is in conflict with established case law or Tribunal procedure and that the proposed reconsideration involves a matter of general or public importance.

5The applicant seeks re-instatement of the Application against all of the respondents that were removed from the proceedings in the Interim Decision. Although the removal of the respondents was effected through an interim and not a final decision of the Tribunal, I am satisfied that such a decision is “final” within the meaning of Rule 26 and qualifies for reconsideration: see Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34. However, after reviewing the applicant’s representations, I am satisfied that he has not established the existence of any of the criteria in Rule 26.5 that would support reconsideration of the Interim Decision.

6The applicant has not referred to any new facts that could be potentially determinative of the issues. The facts the applicant cites in support of his Request were already before the Tribunal at the time of the previous Interim Decision. The Tribunal reviewed those facts and arrived at a conclusion, whose correctness is not brought into question by the applicant’s submissions.

7The applicant has objected to the fact that the Tribunal relied on the Form 25 and Minutes of Settlement submitted by counsel for the respondents, but did not review his “final offer”. Offers of settlement are often privileged and it was for the benefit of the applicant, who may not understand his rights in this regard, that the Tribunal decided not to review his “final offer”. However, as the applicant has sent the “final offer” once again in support of this Request, and has clearly waived any privilege, the Tribunal has reviewed it.

8On review of the “final offer”, the Tribunal finds that it does not support the Request for reconsideration. As stated in the Interim Decision, the applicant does not dispute that he signed the Form 25 and Minutes of Settlement forwarded by the respondents. The basis for his claim that his signature is not valid is that he changed his mind subsequent to signing them. This is not a reason for the Tribunal to refuse to give effect to those documents, nor is the fact that the applicant subsequently made a “final offer” in which he has proposed additional terms to those found in the Minutes of Settlement. Further, the fact that the documents were forwarded by counsel for the respondents and not by the applicant or his counsel does not detract from the binding nature of the documents. Finally, the applicant forwards copies of correspondence relating to settlement of part of his civil action. The content of that correspondence, including any changes allegedly made to a consent order, does not have a bearing on the question of whether the Tribunal should give effect to the Form 25 filed in this Application.

9The applicant also objects to the fact that the Tribunal made no reference to his submissions on the question of whether his Application should be deferred pending the conclusion of civil proceedings. The Tribunal has not made a decision on this question, as it may be moot depending on its determination on other issues to be addressed during the conference call. If the Application proceeds against some or all of the respondents remaining, the Tribunal will consider whether deferral is appropriate.

REQUEST FOR ORDER

10The applicant requests that the Tribunal add as respondents to his Application seven individual respondents. Of these seven individuals, six were removed as respondents in the Interim Decision. The applicant provides addresses for these individuals, and states that as he is now provided addresses, they should be added as respondents.

11The Tribunal’s decision to remove the six individuals as respondents was not based on the absence of contact information. The provision of contact information does not affect the Tribunal’s determination that they should be removed. The Request is denied.

12In relation to the seventh respondent, Robert Mckenzie, the applicant provides a mailing address which appears to be the human resources department of Algonquin College. At the conference call to be scheduled in this matter, in addition to the issues identified in the Interim Decision of December 24, the Tribunal will hear the submissions of the parties on whether this address is a valid contact address for the purpose of giving notice of this Application to this respondent.