Anica Visic v. University of Windsor, 2011 HRTO 1791

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anica Visic Applicant

-and-

University of Windsor Respondent

RECONSIDERATION DECISION

Adjudicator: Ailsa Jane Wiggins Date: October 3, 2011 Indexed as: Visic v. University of Windsor

1This decision addresses a request for reconsideration of the Tribunal’s decision, 2010 HRTO 2196 (the “Decision”), dismissing the Application.

2In this Application, a preliminary hearing was convened to determine whether the Tribunal had jurisdiction over the Application as the applicant is the plaintiff in an ongoing civil proceeding against the respondent and others, and, or in the alternative, whether the Application was statute barred because of delay. In the decision, I found that pursuant to both s. 34(11) and s. 34(1) of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) the Application was outside the Tribunal’s jurisdiction and dismissed it.

3The applicant filed a Request for Reconsideration under section 45.7 of the Code.

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.

4The Tribunal’s Practice Direction on Reconsideration states, in part:

Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO 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.

5Rule 25 of the Tribunal’s Rules of Procedure for Transitional Applications under section 53(3) and 53(5) of the Code provides that any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision. Rule 25.5 provides:

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.

6These four circumstances are also set out in section 2 of the Request for Reconsideration form, Form TR-8, which states: “Please check the reasons why you are making this Request for Consideration. Check all that apply.”

7The applicant checked three out of the four boxes; those that relate to paragraphs a, c and d of Rule 25.5. She also included a thirty page Schedule in support of her request (the “Schedule”).

8As regards to the submission that the Decision is in conflict with established jurisprudence (Rule 25.5(c)), the applicant stated that:

“… the Tribunal erred in failing to consider the case of Palangio v. Cochrane (Town), on which … [the applicant] relied at the hearing…. (Please see the Tribunal’s recording of the hearing). Also, the Tribunal erred in failing to give any reasons for not considering the case of Palangio v. Cochrane (Town).”

In the Schedule the applicant sets out several other cases which she maintains support her position.

9The Applicant is essentially repeating the arguments she made at the hearing. The Tribunal has stated that a request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered: Visconti v. Great-West Life Assurance, 2009 HRTO 153.

10At the hearing both parties directed me to cases that supported their positions. I considered all of the cases to which I was referred but in my Decision I only addressed those that were the most relevant to the Application. There is no requirement for an adjudicator to include in his or her Decision every case cited by the parties.

11As noted above, in the Decision I also found that the Application was out of time. The applicant submits that I erred “in failing to consider that the Application involves allegations that could fall within s.34(1)(b) as “a series of events”. On the contrary, I considered her argument but agreed with the Divisional Court, in Visic v. Ontario Human Rights Commission, University of Windsor et al., 2008 CanLII 20993, that her allegations were not those of a continuing violation of the Code, but rather of continuing effects or consequences of the respondent’s policy.

12In the Schedule the applicant refers to paragraph (a) of Rule 25.5: there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. In the submission quoted in paragraph 8 above, the applicant refers to the recording of the hearing. The applicant also listed the recording as “new documents and information” on which she relies.

13The Tribunal does not normally record hearings. In this case the applicant requested that she be permitted to record the preliminary hearing for Code related reasons. In a letter to the parties the Tribunal stated that it would either permit the applicant to bring her own recording device to record the hearing or would arrange to make an audio recording of the hearing and provide an electronic copy to all parties after the hearing concluded. The Tribunal went on to say: “In either case, the recording does not form part of the Tribunal’s record of proceedings”. The respondent asked that it also be permitted to create its own recording. In a further letter to the parties the Tribunal stated that the same comments applied to the respondent’s request. In other words, the recording which the Tribunal made of the hearing does not form part of the Tribunal’s record of proceedings.

14Most importantly, the recording is not new evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

15In support of her submission that other factors exist that outweigh the public interest in the formality of Tribunal decisions the Applicant relies on two decisions of the Tribunal (Higgins v. Community Living Mississauga, 2010 HRTO 1707 and Magna v. Jaroszynski, 2010 HRTO 2194) and the Tribunal’s Case Assessment Direction dated September 30, 2010.

16In Higgins v. Community Living Mississauga, the request for reconsideration related to the Tribunal’s dismissal of the application due to the applicant’s failure to rectify certain deficiencies in her application. The Tribunal granted the request because the applicant’s claim had never been heard or determined on its merits. She had made an effort to file a transitional application, she had engaged legal representation and had given every indication that she was now engaged in the process and had the representation she required to understand and comply with the requirements.

17In Magna v. Jaroszynski, the Applicant failed to attend the hearing for what later appeared more likely than not to be because of a serious medical condition. In the exceptional circumstances of the case and where the Tribunal’s decision turned largely on credibility, the Tribunal found that the interest of ensuring access to justice outweighed the public interest in the formality of Tribunal decisions.

18The applicant submits that the interest of finality is outweighed by the interest in ensuring access to justice – since, in her submission, her allegations of discrimination, like those in the Higgins and Magda cases, have not been decided on the merits.

19The applicant in this case had every opportunity to present her position at the hearing. The circumstances are very different from the two cases on which she relies.

20The applicant also points out that the Divisional Court may decide to discontinue the civil action before it is resolved on its merits and, as the civil proceeding is at an initial stage, there has been virtually no duplication and no impact on the administration of justice. In my view, these factors do not outweigh the public interest in the finality of Tribunal decisions.

21The applicant also relies on a September 30, 2010 Case Assessment Direction in which the Tribunal stated that it would await the decision in one of two other then outstanding applications involving the applicant before ruling on a request for a summary hearing in the other. The applicant maintains that the resolution of this Application based on its merits may be necessary in order to resolve either or both outstanding applications. In fact, one of those outstanding applications has now been heard on its merits and has been dismissed.

22There are no factors that, in my opinion, outweigh the public interest in the finality of Tribunal decisions. Reconsideration is not an opportunity for a party to reargue its case, nor is it available simply because a party disagrees with a decision. I find that the applicant’s submissions amount to additional argument on the issues addressed at the hearing.

23The Request for Reconsideration is dismissed.