Jennifer Thong v. Toronto Catholic District School Board, 2011 HRTO 357

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Thong

Applicant

-and-

Toronto Catholic District School Board

Respondent

RECONSIDERATION DECISION

Adjudicator: Naomi Overend

Date: February 18, 2011

Citation: 2011 HRTO 357

Indexed as: Thong v. Toronto Catholic District School Board

1On May 6, 2010, the Tribunal issued its Decision in this Application, 2010 HRTO 1016, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

2The Application was dismissed on the basis that the applicant had filed a complaint with the Ontario Human Rights Commission (the “Commission”) based on the same or substantially the same subject-matter as her Application to the Tribunal. The Tribunal ruled that the Application was barred by virtue of s. 53(8) of the Ontario Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”)

DECISION AND ANALYSIS

3Under section 45.7 of 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.

4The 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). Rule 26 states, in part:

26.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision

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.

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.

[Emphasis added.]

6In this case, the Request for Reconsideration contains what the applicant labels “new facts” in the form of email communications that took place in 2008 between her and third parties, who are not named in her Application filed in 2009. She states that these constitute new facts because she could not have been aware of them at the time she filed her complaint with the Commission in 2007.

7The test relating “new facts or evidence …that could not reasonably have been obtained earlier” set out in Rule 26.5(a) relates to new facts or evidence that could not have been obtained prior to the Tribunal issuing its decision on which the applicant is now asking for reconsideration. This information was clearly available to the applicant in 2010 when the Tribunal made its Decision in this instant case.

8The only basis for the applicant’s assertion that the Decision under reconsideration “is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance” is that the Tribunal has an obligation to protect human rights and that dismissing her matter would establish a precedent that would allow employers to discriminate on a variety of prohibited grounds. With respect to the latter point, there is nothing in her Request for Reconsideration that would support this conclusion.

9The Request for Reconsideration has not set out any basis on which the Tribunal could reconsider its earlier Decision. Accordingly, the Request for Reconsideration must be denied.