HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jinshu Xu
Applicant
-and-
Georgian College of Applied Arts and Technology, Betty McCoppen, Robert Emptage and Joyce Goheen
Respondents
-and-
Ron Sky
Intervenor
RECONSIDERATION DECISION
Adjudicator: Geneviève Debané
Date: August 24, 2011
Citation: 2011 HRTO 1583
Indexed as: Xu v. Georgian College of Applied Arts and Technology
WRITTEN SUBMISSIONS BY
Jinshu Xu, Applicant ) Self Represented
1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated June 26, 2009. The human rights complaint underlying the Application was filed with the Ontario Human Rights Commission (the “Commission”) on March 11, 2005 and abandoned upon the filing of this Application.
2Mr. Ron Sky was granted intervenor status by way of a Tribunal decision dated May 6, 2010, reported at 2010 HRTO 1009 (the “Interim Decision”).
3A hearing was convened by the Tribunal to hear evidence in this Application. The parties were permitted to file written submissions and a conference call was later convened for the purposes of concluding closing argument.
4On June 30, 2011, the Tribunal issued its Decision in this Application, reported at 2011 HRTO 1262 (the “Final Decision”) dismissing the Application.
5On July 29, 2011, the applicant filed with the Tribunal a Request for Reconsideration. The Tribunal did not direct the respondents to file any submissions with respect to this Request.
THE REQUEST FOR RECONSIDERATION
6The Request for Reconsideration filed by the Applicant makes, amongst other things, the following allegations:
a. That the Interim Decision applied the wrong rules and created false impressions, lies and breaches of public trust;
b. That the Mediator broke the Rules and made a “private, secret deal” with Ms. Murray, counsel for the respondents, who should not have been permitted to attend because she was not proper counsel; and
c. That the majority of the Tribunal staff did not proceed with his Application in accordance with the Tribunal’s rules, including changing the title of proceedings by reversing the order in which he had listed the respondents and erroneously referring to the intervenor as a respondent.
7The Tribunal notes that Rule 25 of the Rules of Procedure for Transitional Applications only permits a party to reconsider a decision of the Tribunal that finally disposes of a party’s rights. Therefore, the Tribunal will only consider the submissions made by the applicant with respect to the Final Decision. The applicant provides reasons why the Tribunal should reconsider its Final Decision which include the following:
a. There was no proper Response filed with the Tribunal because only the representative of the corporate respondent signed the response;
b. Ms. Murray was not entitled to represent any of the respondents at the hearing because the respondents did not file any signed confirmation that she was their legal representative and therefore “had no legal position in the case”. The Applicant asserts that when he raised this issue during the course of the hearing it was dismissed by the Adjudicator who therefore became biased and “played double roles: the representative of the respondents and the Adjudicator” and put himself “above the Constitution” in failing to remove her as counsel;
c. That the applicant was not permitted to make final argument in a conference call scheduled on August 25, 2010, which was scheduled specifically for that reason;
d. That his six written Requests for Orders During Proceedings were not appropriately dealt with by the Adjudicator. These include a Request for a written hearing which was filed on July 4, 2010, which is after the first day of hearing and after all of the oral evidence had been heard by the Tribunal, and a Request filed with the Tribunal on June 23, 2011, requesting, amongst other things that the Executive Chair issue directions and state a case to the Divisional Court for contempt against the respondents;
e. This decision contains numerous errors which include;
(1) The title of proceedings is incorrect because the individual respondents are not listed in the same order as in the Application filed with the Tribunal;
(2) The decision misidentifies the intervenor as unrepresented; and
(3) The Tribunal failed to accept the applicant’s evidence and dismissed the Application.
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.
9Rules 25.1 and 25.5 state:
25.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision
25.5. 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.
10As 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.
11I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration. In support of its Request, the applicant is essentially repeating arguments made orally and in writing before the Tribunal, on numerous occasions. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.
12The Tribunal notes that central to all of the applicant’s submissions made to the Tribunal, including his Requests for Orders During Proceedings, his Request to State a Case to Divisional Court and this Request is his repeated submissions that counsel for the respondents had no legal status at the hearing. This argument was properly dismissed by the Adjudicator and was not evidence of bias. There is no legal basis properly advanced by the applicant for the removal of the respondents’ counsel.
13Reconsideration 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. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal. Further, I find that the applicant has had ample opportunity to present his case and file submissions with respect to this Application.
14In sum, I find that the applicant has not established the existence of any of the criteria in Rule 25 that would lead to reconsideration of the Tribunal’s Final Decision. The Request is denied.
Dated at Toronto, this 24th day of August, 2011.
“Signed by”
Geneviève Debané
Vice-chair