A.W. v. Ottawa International Soccer Club, 2011 HRTO 2295

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.W. by her Litigation Guardian Carol-Lynne Saad

Applicant

-and-

Ottawa International Soccer Club, Bob Monaghan and William Lloyd

Respondents

Reconsideration Decision

Adjudicator: Leslie Reaume

Date: December 22, 2011

Citation: 2011 HRTO 2295

Indexed as: A.W. v. Ottawa International Soccer Club

1Ottawa International Soccer Club (the “corporate respondent”) filed a Request for Reconsideration of the Tribunal’s Decision, 2011 HRTO 915, pursuant to section 45.7 of the Ontario Human Rights Code R.S.O., c. H.19, as amended (the “Code”).

2Section 45.7 of the Code provides the Tribunal with explicit authority to reconsider its decisions:

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.

3Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration, as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers.

4Rule 26 reads, in part, as follows:

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 and orders.

5The 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.

6In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal confirmed that reconsideration is not an opportunity to re-argue a case. Once the parties to an application 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.

7The original Decision dealt with the applicant’s allegations of contravention of settlement by the respondents. None of the respondents appeared at the hearing despite having received notice. While the corporate respondent relies on all four of the grounds set out in Rule 26.5, the respondent’s submissions contain only two arguments supporting the Request: the Decision is incorrect because the Tribunal misinterpreted the underlying agreement; and the Decision should be overturned because there was confusion about the date of the hearing.

8The arguments that relate to the correctness of the order do not provide a basis for reconsideration. Reconsideration is not an opportunity for the corporate respondent to argue the case it could have argued if it had participated in the hearing.

9With respect to the issue of notice, the corporate respondent confirms that notice of the hearing date was received; however, the contact person for himself and the corporate respondent, Mr. Monaghan, asked for the hearing to be rescheduled. As a result, there was confusion about whether or not the hearing would go ahead on the original date. Mr. Monaghan contacted the Tribunal by email on September 21, 2010, to indicate that he was not available for the hearing. The Registrar wrote to Mr. Monaghan on September 30, 2010, advising him that he was to provide five alternate dates and copy the other parties with his request. Mr. Monaghan wrote to the Registrar on October 3, 2010, advising that he was available March 14-19, 2011. The Registrar wrote back to Mr. Monaghan on October 4, 2010, advising him once again that the Tribunal would consider his request to reschedule the hearing once he had provided all parties to the application with a copy of the request and his available days as required by the Tribunal’s Rules of Procedure.

10The issue of notice was considered at the commencement of the hearing and the contravention of settlement Decision reflects this at paragraphs 3 and 4:

A notice of confirmation of hearing dated August 5, 2010 was sent to the parties at their last known addresses. In addition to the organizational respondent, both of the individual respondents were sent copies of the Confirmation of Hearing to their home addresses.

Mr. Monaghan contacted the Tribunal in relation to this matter on October 3, 2010 by email and advised, among other things, that he was not available to participate in the hearing in the month of December, 2010. He was advised by the Registrar of the Tribunal by return email on October 4, 2010 that the Tribunal would consider his request once he complied with the Rules and provided all parties to the application with a copy of his request and available dates. There is no record of any further communication from Mr. Monaghan after this date. I am satisfied that the respondents had notice of the hearing and chose not to appear. At 10:45 a.m., the Tribunal proceeded to hear the evidence of the applicant.

11The instructions from the Registrar were clear. The contact person for the corporate respondent failed to comply with those instructions. The respondent has provided no basis on which I might exercise my discretion to overturn my original decision in this matter. Accordingly the Request for Reconsideration is denied.