Visic v. Elia Associates Professional Corporation, 2011 HRTO 1933

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anica Visic

Applicant

-and-

Elia Associates Professional Corporation, Patricia Elia and Richard Elia

Respondents

RECONSIDERATION DECISION

Adjudicator: Ena Chadha

Date: October 26, 2011

Citation: 2011 HRTO 1933

Indexed as: Visic v. Elia Associates Professional Corporation

WRITTEN SUBMISSIONS BY

Anica Visic, Applicant ) On her own behalf

Elia Associates Professional ) Richard Elia, Counsel

Corporation, Richard Elia and )

Patricia Elia, Respondents )

BACKGROUND

1This Application was filed on November 28, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O 1990, c. H.19, as amended (the “Code”). The Application alleged that Elia Associates Professional Corporation, Richard Elia and Patricia Elia harassed, discriminated and reprised against the applicant with respect to employment and membership in a vocational association on the basis of disability contrary to sections 5, 6, 8, 9 and 23 of the Code.

2The Application was dismissed by way of Decision 2011 HRTO 1230. The Decision concluded that there was insufficient evidence to establish, on a balance of probabilities, that any discriminatory factor was involved in the respondents’ request for the applicant’s final law school transcript or the decision to terminate the applicant’s employment. The Decision also held that the applicant was not harassed nor reprised against by the respondents.

3The applicant filed a request for reconsideration. The applicant argues that the Decision was incorrect in law. The applicant also asserts that there are new facts or evidence which was not previously available and that other factors exist that outweigh the public interest in the finality of the Tribunal’s decision.

4The Tribunal delivered the applicant’s reconsideration request to the respondents. The respondents filed submissions opposing the reconsideration request. The respondents submit that the applicant has not advanced any new facts or evidence that were not considered in the hearing process or could not have been advanced at that time.

5The applicant filed reply submissions. The applicant asserts that there are common issues between the instant Application and her other human rights applications against the Law Society of Upper Canada and University of Windsor. The applicant appears to be arguing that, because the issues are linked between her various applications, this matter should be reconsidered in the context of all the applications.

RELEVANT LEGISLATIVE PROVISIONS

6Section 45.7 of the Code provides the Tribunal with authority to reconsider its decisions in accordance with its rules. Further to its power to make rules, the Tribunal has issued Rules governing requests for reconsideration. Rule 26.5 provides that 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;

(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;

(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 and orders.

ANALYSIS

7It is noteworthy that the Tribunal’s Practice Direction on Reconsideration expressly states that:

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.

8Having carefully considered the applicant’s submissions, I am not satisfied that there is a basis for reconsideration of the Tribunal’s Decision. As indicated in the Practice Direction, reconsideration is not an appeal process, nor an opportunity for a party to resubmit positions previously argued or advance arguments that could have been submitted in the hearing.

9The applicant appears to argue that the Decision misapprehended or ignored evidence of the respondents that purportedly confirmed her allegations. The applicant’s submission regarding this “new” evidence does not explain on what basis this evidence can be considered to be “new”. Further, the reconsideration submissions appear to acknowledge that the “new” evidence, namely the respondents’ witnesses statements that the applicant alleges supports her case, were, in fact, available prior to and during the hearing process. I find that the applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

10In addition, the applicant does not explain which aspects of the Decision are contradicted by existing jurisprudence. Although the applicant provides a detailed summary of disability, equality and reprisal case law, the applicant does not indicate on what basis the findings of fact and/or law made in the Decision are in conflict with the cited jurisprudence. Rather, it appears that the applicant is attempting to re-argue her case by repeating many of the same arguments that she made during the hearing process.

11The applicant also repeats many of the same arguments made in her closing submissions as to why she believes the evidence demonstrates that the respondents engaged in discrimination. For example, the applicant appears to suggest that the Decision failed to consider the fact that, notwithstanding claiming that they had one, the respondents did not produce an internal human rights policy. This issue was highlighted by applicant during the hearing. I did not find the issue to be material and continue to conclude that the issue is not determinative of the allegations. The applicant’s disagreement with the conclusions that I drew from the oral and documentary evidence and my analysis of the facts and law do not constitute a basis for reconsideration as outlined above in Rule 26.5.

12Tribunal jurisprudence recognizes the public importance in upholding the finality of decisions subject to certain circumstances as outlined in the Practice Direction. I am not satisfied that any compelling and extraordinary circumstances exist, such that the Tribunal ought to exercise its discretion to reconsider the Decision in this matter. As set out in the Decision, the hearing was held over the course of eight days and the parties were ably represented by counsel. I am satisfied that the applicant had a full and fair opportunity to present her case before a final decision was rendered in this matter.

13At the conclusion of her reconsideration submissions and alluded to in her reply submissions, the applicant requests the Tribunal to consolidate the current Application with her two other applications and, in the alternative, to add the University of Windsor, the respondent in another matter, as a party to this Application. These types of requests are not considered at the reconsideration stage and, in particular, would not be contemplated in the absence of appropriate notice to the other parties.

14The applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. There are no new facts or evidence that could potentially be determinative of the case. The applicant’s request does not establish that the Decision conflicts with established jurisprudence and that the reconsideration raises issues of general or public importance. Nor are there other factors identified in the request that outweigh the public interest in the finality of Tribunal decisions.

15For all of the above-noted reasons, the request for reconsideration is denied.