Notash v. Queen’s University, 2011 HRTO 1756

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leila Notash

Applicant

-and-

Queen’s University and Michael Birk

Respondents

RECONSIDERATION DECISION

Adjudicator: Ian R. Mackenzie

Date: September 26, 2011

Citation: 2011 HRTO 1756

Indexed as: Notash v. Queen’s University

1On August 26, 2011, the Tribunal issued its Decision in this Application, 2011 HRTO 1603, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision. For the reasons that follow, I have denied the request for reconsideration.

background

2The Tribunal’s Decision found as follows:

12The parties to this Application settled the Application in a settlement that clearly referred to the Application. On its face, the settlement clearly shows an intention to settle the Application and the issues underlying the Application. Subsection 45.9 (1) of the Code provides that a settlement of an application made under section 34 is binding on the parties. In this case, the applicant agreed in the MOS to withdraw her Application. She has failed to do so.

13The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended allows a tribunal to make an order that it considers proper to prevent an abuse of its processes: subsection 23(1). The Tribunal has held that filing a human rights application after having reached a settlement of the underlying issues may constitute an abuse of process (see, for example, Luo v. Dell Canada, 2010 HRTO 879). The rationale for such a conclusion is to recognize the finality of settlements. Settlements should only be set aside when there are compelling reasons to do so: Perricone v. Fabco Plastics Wholesale, 2011 HRTO 1655. The same rationale applies to a failure to withdraw an application after having reached a settlement of the application.

14The reasons given by the applicant for the setting aside of the settlement are coercion and pressure. In Luo, the Tribunal found that a finding of duress would require a finding that the applicant had been threatened with some kind of harm if she did not settle the matter. In Samuels v. Seneca College of Applied Arts and Technology, 2011 HRTO 1211, the Tribunal concluded that the same requirement applied to coercion. In this case, the applicant did not allege that she was threatened in any way prior to signing the MOS. In fact, she states that it “got to the point that I felt this university was not worth it and signed it.” This is resignation, not coercion.

15Based on the submissions of the applicant, I conclude that the applicant did consent to the terms of the MOS. There are no allegations by the applicant to support a finding that she was coerced or forced to sign the MOS. Having second thoughts about settling an Application is not a basis for overturning the MOS.

16I find it would be an abuse of process to allow the Application to proceed.

THE REQUEST FOR RECONSIDERATION

3In her Request for Reconsideration, the applicant made the following submissions.

4The applicant submitted that the person with the authority to bind Queen’s University in any settlement was Dan Bradshaw, Associate Vice-Principal, Faculty Relations (according to the Response to the Application filed by the respondent). The applicant submits that Mr. Bradshaw did not sign the Memorandum of Settlement (“MOS”) and that Queen’s University was not a party to the MOS. The applicant submitted that the test to determine a final settlement should be whether or not all parties sign minutes of settlement, and if all parties have not signed there is no final settlement. She submitted that the MOS is therefore not binding on Queen’s University and the Application as against the university is “still alive” and should not have been dismissed.

5The applicant also submitted that the main substance of her application has not been addressed by the settlement. She further submitted that there will be no recourse against Queen’s University if the minutes of settlement are contravened.

6The applicant requested that the Application against Queen’s University be allowed to proceed.

7The Tribunal does not require submissions from respondents in all cases of a request for reconsideration. In this case, I find that submissions of the respondents are not necessary to determine the request for reconsideration.

DECISION

8Under section 45.7 of the Human Rights Code, R.S.O 1990, c.H.19, as amended the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s 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). The applicant has relied on the following grounds for reconsideration, set out in Rule 26:

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(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.

10Reconsideration is a discretionary remedy. It is not an appeal or a chance for a party to repair any deficiencies in its presentation of its case. Generally, the Tribunal will only reconsider a decision in compelling and extraordinary circumstances, and where those circumstances outweigh the public interest in the finality of orders and decisions (see the Practice Direction on Reconsideration).

11The applicant provided no established jurisprudence that is in conflict with the Decision.

12The applicant is now arguing that the MOS is not binding on Queen’s University because a representative of the university did not sign the MOS. She is also arguing that the settlement did not address all of the issues contained in her Application and that there is no mechanism for enforcing the settlement against Queen’s University. These are additional arguments on issues already fully canvassed before the Tribunal. These arguments could have been made by the applicant in her earlier submissions to the Tribunal. A reconsideration request is not an opportunity to re-argue a case (Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34).

13There are no factors that, in my opinion, outweigh the public interest in the finality of Tribunal decision.

14In conclusion, I find that the applicant has not established the existence of any of the criteria that would justify a reconsideration of the Tribunal’s Decision.

15The Request is denied.