Li Liu v. Country Herbs and Garry Proven, 2011 HRTO 1166

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Li Liu

Applicant

-and-

Country Herbs and Garry Proven

Respondents

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta

Date: June 15, 2011

Citation: 2011 HRTO 1166

Indexed as: Liu v. Country Herbs

1On March 7, 2011, the Tribunal issued a Decision, 2011 HRTO 475, in which it dismissed the Application made pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Tribunal determined that the applicant had not established that she had experienced disadvantage in the manner in which she was treated in the workplace or in the reason for her layoff. The Tribunal held that there was no evidence that the applicant’s race, colour, place of origin, ancestry, marital status or disability played any role in the respondents’ decisions.

2On May 31, 2011, the applicant filed a Request for Reconsideration (“Request”) and submissions in support of the Request. A respondent is not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal. In the circumstances of this Request, the Tribunal did not deem it necessary to seek submissions from the respondents.

RELEVANT LEGISLATIVE PROVISIONS

3Section 45.7 of the Code provides the Tribunal with authority to reconsider its decisions. Further to its power to make rules, the Tribunal has issued Rules governing Requests for Reconsideration. Most relevant to this Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision [emphasis added]

4Rule 26.5 provides that 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.

5The Tribunal has also issued 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). The Tribunal’s Practice Direction on Reconsideration states, in part, the following with respect to the Tribunal’s power to grant reconsideration:

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.

DECISION

6The applicant filed the Request after the 30 days provided for in Rule 26.1. The Tribunal has, in some instances, denied the Request for Reconsideration on this basis alone (see der von Felix v. International Financial Data Services (Canada), 2010 HRTO 362).

7In the circumstances of this case, the applicant indicates she was out of the country from March 5, 2011 through to April 2, 2011. She then wrote to the Tribunal on April 24, 2011, some three weeks later, to ask what she could do if she was dissatisfied with the Decision of the Tribunal. Upon being informed by way of a letter dated May 5, 2011, that she could fill out and file a Form 20, she did so on May 31, 2011. She indicates that during all this time, she was unaware of the 30 day deadline.

8In the circumstances, I have considered the submissions made in the Request for Reconsideration despite the delay in filing it.

9The applicant identifies the following as the basis for the Request:

a. the decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; and

b. other factors exist that outweigh the public interest in the finality of Tribunal decisions.

10It is important to stress that a reconsideration request is not an appeal. It is evident that the applicant disagrees with the Tribunal’s finding. However, this alone is not a basis for granting a Reconsideration Request; for the applicant’s Request to be successful, it must meet the criteria established at s.45.7 of the Code and Rule 26.5.

11In my view, the applicant’s Request does not meet these criteria.

12In essence, she disagrees with the Tribunal’s conclusion that Code grounds did not play a role in the decisions made by the respondents during her employment at Country Herbs and in her lay off.

13Her argument relating to “other factors that outweigh the public interest in the finality of tribunal decisions” is her assertion that there are reports in the media that confirm that new immigrants from different cultural backgrounds face workplace discrimination and unfair treatment and the facts in her case bear out the media reports.

14The thrust of the applicant’s other submissions essentially reiterates arguments she had already made. While it is evident that the applicant disagrees with the Decision, she has presented no basis to reconsider the Decision.

15The Request for Reconsideration is denied.