Donnelly v. Spinz Coin Laundries, 2010 HRTO 809

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ruby Donnelly Complainant

-and-

Ontario Human Rights Commission Commission

-and-

1531315 Ontario Ltd. o/a Spinz Coin Laundries, Gino Costabile and Angela Costabile Respondents

RECONSIDERATION DECISION

Adjudicator: Brian Eyolfson Date: April 13, 2010 Citation: 2010 HRTO 809 Indexed as: Donnelly v. Spinz Coin Laundries

WRITTEN SUBMISSIONS BY

1531315 Ontario Ltd. o/a Spinz Coin Laundries and Gino Costabile, Respondents: Gino Costabile

1On June 4, 2009, the Tribunal issued its Decision in this matter, Donnelly v. Spinz Coin Laundries, 2009 HRTO 754, finding that Mr. Costabile and Spinz Coin Laundries violated the complainant’s right to be free from discrimination. These respondents have asked the Tribunal to reconsider its Decision.

BACKGROUND/DELAY

2It appears that the Tribunal initially received a Request for Reconsideration (“Request”) from the respondents on Monday, July 6, 2009, however, the Request was not on the correct form and there was no indication that the Request was served on the other parties. By letter dated July 10, 2009, the Tribunal provided the respondents with a copy of the correct form (Form 7) and requested that the respondents file the correct form with the Tribunal, along with a statement of service indicating they have served the complainant and the Commission. The Tribunal advised the respondents that their Request would not be processed as it stood.

3The Tribunal received a Request (Form 7) from the respondents on March 5, 2010, along with a statement of service. Attached to the Request are two affidavits, one sworn by Mr. Costabile and one sworn by Frank Alfano, who is described as a paralegal and friend of Mr. Costabile. In his affidavit, Mr. Costabile states that a form of reconsideration was filed within the appropriate time period, however, they are now aware that it was the wrong form and that his request to reconsider has not been processed. He submits that his filing of the original form, although the wrong form, demonstrates his intention to commence the proceeding. Mr. Alfano’s affidavit supports Mr. Costabile’s affidavit.

4Rule 98 of the Tribunal’s Rules of Practice provide that any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision. A number of other Tribunal Rules address time limits. Rule 34(c) provides that where a Rule refers to a period of time that expires on a holiday (which pursuant to Rule 4 includes Saturdays and Sundays), the act may be done on the next day that is not a holiday. Rule 35 provides that the Tribunal may extend or abridge the time limits of any obligation under the Rules and, pursuant to Rule 14(a), the Tribunal may lengthen or shorten any time limit in the Rules. I also note that Rule 6 provides that no proceeding is invalid by reason only of a defect or other irregularity in form.

5I have some serious concerns with the apparent delay in bringing this Request, as the respondents were advised by the Tribunal by letter dated July 10, 2009, that they had filed their Request on the wrong form and had not indicated if the other parties were served with the Request. The subsequent Request on the correct form was not received by the Tribunal until March 5, 2010. There is no explanation for this almost eight month delay. The affidavits of Mr. Costabile and Mr. Alfano simply state that they are “now aware” that the initial Request was filed on the wrong form. On the other hand, although it appears that the Tribunal’s July 10, 2009, letter to the respondents was not returned, I am also concerned, based on the materials before me, that the respondents might not have received the Tribunal’s correspondence. In the circumstances, I will proceed to consider the respondents’ Request.

THE REQUEST FOR RECONSIDERATION

6The Request provides the following reason why the Tribunal should reconsider its Decision:

The adjudicator made finding which did not support the ultimate verdict. It is respectfully submitted that the decision is not consistent with either the findings of credibility or the public interest.

7The affidavits of both Mr. Costabile and Mr. Alfano also provide the following reasons for reconsideration:

(a) The adjudicator made finings [sic] which supported my position but found contrary to those findings;

(b) There was no evidentiary basis to find as he did;

(c) The ultimate conclusion and decision reached is unreasonable based on the findings of fact made by the adjudicator.

DECISION

8Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

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.

9The 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). Most relevant to this Decision is Rule 102 which states:

102. 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;

(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;

(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.

10The 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.

11As 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.

12I find that the respondents have not met the burden of establishing any of the threshold criteria justifying reconsideration.

13The respondents essentially state that the adjudicator made findings that did not support the ultimate outcome, but provide no particulars. The respondents have not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. There is nothing before me suggesting that the respondents were entitled to but did not receive notice of the proceeding or a hearing. While the respondents clearly disagree with the conclusions of the Tribunal, I am not convinced that any findings made in the Decision are in conflict with established jurisprudence.

14It is important to note that the issues raised in this Request, although lacking in particulars, were in general the subject of submissions before the Tribunal, and dealt with in its Decision. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties 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.

15Lastly, I also do not find that there are any compelling or extraordinary circumstances for reconsideration that would outweigh the public interest in the finality of Tribunal decisions and orders.

16In sum, I find that the respondents have not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.

Dated at Toronto, this 13th day of April, 2010.

“Signed By”

__________________________________

Brian Eyolfson Vice-chair