Huang v. University of Ontario Institute of Technology, 2011 HRTO 1651

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Huang

Applicant

-and-

University of Ontario Institute of Technology,

Amanda Northcott, Bill Muirhead, Dave Robertson, Donna Epstein, Emily Laverty, Gary Pitcher, John Easton, Kim Carr, Kimberley Young, Laura Benniger,

Richard Bartholomew, Tracey Marshall, Victoria Pearce and William Smith

Respondents

RECONSIDERATION DECISION

Adjudicator: Mary Truemner

Date: September 6, 2011

Citation: 2011 HRTO 1651

Indexed as: Huang v. University of Ontario Institute of Technology

[1] On May 16, 2011, the Tribunal issued its Decision in this Application, [2011 HRTO 937](https://www.minicounsel.ca/hrto/2011/937), dismissing the Application after a summary hearing on the basis that it had no reasonable prospect of success. The applicant has asked the Tribunal to reconsider its Decision.

ANALYSIS

[2] Under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H. 19, as amended (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.

[3] 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. Rule 26.5 states:

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.

4The 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.

[5] In this case, the applicant’s Request for Reconsideration (the “Request”) indicates that 1) there are new facts that could potentially be determinative of the case that could not reasonably have been obtained earlier; 2) the Decision dismissing the Application is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; and 3) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

No New Evidence Potentially Determinative of the Case

[6] In the box on the Request for Reconsideration Form which asks the applicant to provide detailed reasons and representation in support of the Request, the applicant wrote:

The tribunal did not take into consideration the discrimination is hidden and that incidents are connected. Brian Marshall did not come to clarify the report nor did Bill Muirhead with the applicant, when Brian Marshall released his “finished” investigative report. New evidence provided that the respondents lied and Human Resources department did not contacted the Applicant; only Brian Marshall had contacted the applicant after the issuance of probationary contract and “Do Not Return” notice and that was when the investigation first started. The HRTO requires to look at the evidence as whole, not just one or two incidences alone to determine discrimination. There were flaws in Brian Marshall’s investigative report. [Grammar, punctuation and spelling are reproduced as in original text].

[7] The applicant states that Brian Marshall, who was retained by the University to investigate the applicant’s internal complaint of discrimination, produced a faulty report. He appears to argue that Mr. Marshall should have “come to clarify the report”. The purpose of the summary hearing was not to adduce evidence, but simply to hear from the applicant what evidence he had which would link the alleged events to Code grounds to prove discrimination and reprisal. The investigator’s report itself was available to the applicant at the time of the summary hearing, and his counsel was welcome to make submissions with respect to what in the report might prove discrimination and reprisal. Nothing in the Request leads me to believe that anything in the report amounts to new facts or evidence that could potentially be determinative of the case; however, even if there were something in the report that could potentially be determinative of the case, it would not justify reconsideration given that it was available at the time of the summary hearing.

[8] The applicant also argues that the Tribunal should have reviewed the report of the University’s investigation in light of new e-mails he attached to the Request. He states in his submissions attached to the Request Form that Emily Laverty, one of the personal respondents, had lied to Mr. Marshall about what marks the applicant had told her he was appealing. The applicant argues that evidence that Ms. Laverty lied proves his allegation of race and creed discrimination when she told him to treat the marks he did receive as a “blessing” or “gift”. Even if the e-mails were unavailable at the time of the summary hearing, I do not agree that they amount to new facts or evidence that could potentially be determinative of the case.

[9] I have read the other numerous e-mails the applicant attached to his submissions, which he claims were not available for the summary hearing, and they provide no links between how he was treated by the respondents and the grounds cited in his Application. They are exchanges between himself and employees of the University respondent. Most are concerned with the applicant trying to arrange meetings with Bill Muirhead, a personal respondent, to negotiate a settlement with the University on the basis that the applicant believed their internal investigation would encourage the University to settle. Some involve his attempts to obtain e-mail messages from his campus account. None of the e-mails involve or refer to the human rights grounds cited in the Application. None contain information or evidence that could potentially be determinative of the case.

[10] Also included with the Request submissions are cover pages of lab reports and hand written marks. They do not contain information or evidence that could potentially be determinative of the case, nor does it appear they were unavailable at the time of the summary hearing.

No Conflict with Established Jurisprudence

[11] With respect to the applicant’s indication that he is requesting reconsideration because the Decision dismissing the Application is in conflict with established jurisprudence or Tribunal procedure, and the proposed reconsideration involves a matter of general or public importance, the applicant’s submissions state:

The Tribunal member who dismissed the case relied only on a few instance that occurred but failed to take into consideration the whole of the evidence submitted by the Applicant. The Respondent failed to submit a reply and were not required to explain why their actions did not constitute reprisal, which is contrary to well established case law…

[Grammar, punctuation and spelling are reproduced as in original text].

[12] The Tribunal had directed in this case that the respondents were not required to file any Response to the Application. This is not in conflict with established Tribunal procedure in the context of summary hearings. It was not contrary to Tribunal jurisprudence or procedure for the Tribunal to have dismissed this Application after a summary hearing without requiring the respondents to produce any Response once the Tribunal concluded that there was no reasonable prospect of success for the Application.

[13] The applicant refers to two cases: [Noble v. York University, 2010 HRTO 878](https://www.minicounsel.ca/hrto/2010/878) and [Chan v. Tai Pan Vacations, 2009 HRTO 273](https://www.minicounsel.ca/hrto/2009/273). Unlike this case, both those cases involved complaints that were filed at the Ontario Human Rights Commission and then referred by the Commission to the Tribunal. Neither of those cases was decided pursuant to a summary hearing. The procedure and issues that applied in those cases are therefore not the procedure and to be applied in this case which involves a summary hearing.

14The summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure. In a summary hearing, the issue is whether the Application should be dismissed in whole, or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed.

15As stated in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paragraphs 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

[16] The applicant also refers to a 1997 case about the Human Rights Commission’s authority to review and reverse a decision, but it is irrelevant given that the Commission is not involved in the present Application.

[17] The applicant argues that the Decision dismissing his Application deviates from Tribunal jurisprudence which states that reprisal and discrimination are rarely practiced openly, and that they may be proved by inference after drawing on the whole of the evidence. I do not agree that the Decision did not consider all of the evidence to which the applicant referred at the summary hearing. The applicant argues that a four hour summary hearing did not afford his counsel sufficient time to present all of the evidence submitted to support his case which needed to be considered in its entirely. I disagree. At the summary hearing, the applicant’s counsel was provided full opportunity to make submissions with respect to whether there was evidence to link the events described in the Application with the allegations of discrimination and reprisal. Counsel for the applicant completed his oral submissions, and the Decision dealt with them. The Decision also dealt with the hundreds of pages of written submissions filed by the applicant prior to the summary hearing. Having found that the Tribunal’s Decision to dismiss the Application is not in conflict with established jurisprudence or Tribunal procedure, I need not address whether the proposed reconsideration involves a matter of general or public importance.

No Other Factors Exist to Outweigh the Public Interest in Finality of Tribunal Decisions

[18] While the applicant checked off the box on his Reconsideration Form that “other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions,” he does not explain why he cites this as a reason for reconsideration in his submissions.

[19] Under the heading “Respondents not addressed during the Summary Hearing”, the applicant’s submissions refer to numerous incidents and communications between the applicant and various employees of the corporate respondent, including some of the personal respondents, but these submissions do not explain why the incidents and communications relate to new evidence, to jurisprudence which conflicts with the Decision to dismiss the Application or to anything that outweighs the public interest in the finality of Tribunal decisions. As indicated above, the reconsideration process is not an opportunity for the applicant to simply reargue his case.

DECISION

[20] The Request for Reconsideration is denied.