HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ivania Chuvalo

Applicant

-and-

Toronto Police Services Board and Alfred Iannuccilli

Respondents

RECONSIDERATION DECISION

Adjudicator: Naomi Overend

Date: July 6, 2011

Citation: 2011 HRTO 1291

Indexed as: Chuvalo v. Toronto Police Services Board

[1] On October 6, 2010, the Tribunal issued its Decision in this Application, 2010 HRTO 2037, allowing the Application and ordering, among other things, the payment to the applicant of compensation for injury to dignity, feelings and self-respect. The personal respondent, Alfred Iannuccilli, has asked the Tribunal to reconsider its Decision.

[2] The personal respondent bases his Request for Reconsideration (Form 20) on the discovery of information about the applicant’s alleged participation in coaching for a high school wrestling team in the 2007-2008 academic year, which he states is inconsistent with her position that she had a disability. He states that, given that this matter was determined largely on the assessments of credibility of the applicant and the personal respondent, this “evidence” “could be potentially determinative of this case.”

DECISION AND ANALYSIS

[3] Under 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.

(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] 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). Rule 26 states, in part:

26.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision

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.

5The 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.

[Emphasis added.]

[6] In this case, the Request for Reconsideration relies on Rule 26.5 (a). The personal respondent asserts he became aware of new “evidence” concerning the applicant’s alleged involvement in extra-curricular activities after the hearing of the matter.

[7] The applicant was asked to provide submissions on this Request for Reconsideration. In her Response to a Request for Reconsideration (Form 21), the applicant states that she did not coach the female varsity wrestling team and that the reference to “Ms Chuvalo” in the handbook was a typographical error. To that end, she provided a letter from the Director of Athletics at the school in question who wrote that the reference was made in error and should have read Mr. Chuvalo.

[8] Moreover, she states that this particular issue (indeed, the pages from the handbook attached as Appendix 1 to the Request for Reconsideration) was canvassed by then counsel for the personal and organizational respondents (Sharmilla Clark) with counsel for the applicant at the time of the closing arguments, but was not pursued before the Tribunal during closing argument.

[9] In his Reply to the Response, the personal respondent denies that there was a conversation between counsel on the basis that neither he nor the Toronto Police Services Board staff representative, Wendy Rysek, witnessed this conversation. Other than making this hearsay comment about Ms Rysek, the personal respondent provides no letter or affidavit from this individual in his Reply. Further, the personal respondent’s Reply materials contain nothing from (or on behalf of) Ms Clark, then counsel for the respondents.

[10] I would note that even if he had provided better evidence concerning Ms Rysek’s alleged observation, I cannot infer that the conversation between counsel did not take place from the fact that neither he nor Ms Rysek witnessed it. That is, all that I would be able to take from this information is that neither he nor Ms Rysek participated in the conversation, a fact which is neither extraordinary nor unusual.

[11] More fundamentally, Rule 26.5 (a) requires that the new “evidence” or “facts” “could not reasonably have been obtained earlier.” In his Reply submissions, the personal respondent states that he obtained this information by doing a “google” search following the end of the hearing. He is not suggesting that he could not have done such a search earlier or that if he had done such a search it would not have revealed the information about the applicant’s alleged coaching activities.

[12] In summary, in support of his Request for Reconsideration, the personal respondent is relying on what is apparently incorrect information. As such, he has not submitted “evidence” (new or otherwise) that would be determinative of the case. Moreover, he has not demonstrated that this “evidence,” such as it is, could not reasonably have been obtained earlier.

[13] Accordingly, the Request for Reconsideration must be denied.