Chanderpaul v. Labourers’ International Union of North America, 2011 HRTO 611

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dindilall Chanderpaul

Applicant

-and-

Labourers’ International Union of North America, Local 183 and Tony Dionisio

Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: March 29, 2011

Citation: 2011 HRTO 611

Indexed as: Chanderpaul v. Labourers’ International Union of North America

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision, 2010 HRTO 2062, dated October 8, 2010, which dismissed this Application for delay and failure to set out a prima facie case.

2On January 21, 2011, the applicant filed a Request for Reconsideration of the Tribunal’s Decision. While this Request is beyond the 30-day time period for filing a Request for Reconsideration, I have waived this requirement on the basis that applicant’s former counsel failed to forward a copy of the Tribunal’s Decision to the applicant and the applicant states that he did not receive a copy of the decision until it was sent to him directly in late December 2010. Accordingly, I have considered the application’s Reconsideration Request on its merits.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), provides as follows:

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.

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The 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).

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.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated 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.

8The Tribunal’s Rules of Procedure for Transitional Applications provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 25.5 of the Rules 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.

9As a result, I need to determine whether the material filed by the applicant in support of his Request for Reconsideration satisfies any of the criteria set out in Rule 25.5.

10The applicant first takes issue with my reliance in paragraph 10 of my Decision on the fact that after the occurrence of the incidents in 1997 and 1999 raised in his complaint, the applicant had filed human rights complaints against other entities, at least one of which had been dismissed by the Commission for delay. The applicant submits that in this paragraph I “deferred” to the Commission’s decision to dismiss one of his complaints for delay, but then in the next paragraph of my Decision state that I am not bound by the Commission’s decision not to dismiss his complaint against the respondents for delay. The applicant submits that this is arbitrary.

11With respect, the applicant has missed the point that I was making in my Decision. The point I make in paragraph 10 is that the applicant knew of his ability to file a human rights complaint during the period following the alleged 1997 and 1999 incidents because he filed such complaints against other entities during this period, and moreover he knew that human rights complaints needed to be filed in a timely way because one of these complaints had been dismissed by the Commission for delay. I did not say that I was “deferring” to the Commission’s decision to dismiss one of these other complaints for delay, as this was not an issue before me.

12The applicant next submits that when stating in paragraph 11 that I was not bound by the Commission’s prior determination not to dismiss his complaint for delay, I did not set out the Tribunal’s test for good faith and how it differs from the Commission’s. In fact, I set out the Tribunal’s test for good faith in paragraph 9 of my Decision, which requires that the applicant provide some reasonable explanation for the delay.

13The applicant further submits that prior to the legislative changes to the human rights system which took effect on June 30, 2008, he did not have the right to file a complaint with the Commission; rather, he contends that he only had the ability to inform the Commission of alleged events and then it was up to the Commission to decide whether to exercise its discretion to proceed with a complaint.

14Once again, with respect, this is not an accurate statement of the state of the law prior to June 30, 2008. Prior to June 30, 2008, the former s. 32(1) of the old Human Rights Code gave a person the right to file a complaint if they believed that their rights under the Code had been infringed. The discretion exercised by the Commission was under s. 34 of the old Code, in terms of whether or not to deal with a filed complaint, and under s. 36 of the old Code, in terms of whether to refer a filed complaint to this Tribunal for a hearing. Accordingly, the prior legislative scheme does not provide a reasonable explanation for the applicant’s delay in filing a complaint with regard to his allegations from 1997 and 1999.

15With regard to my finding that the applicant did not make out a prima facie case of discrimination in relation to the October 2003 allegation, the applicant submits that he obtained new information in November 2010, namely the existence of a report in which it is alleged that the respondent union admitted that it engaged in activities targeted to minorities.

16In order to justify reconsideration under Rule 25.5(a), it is not enough that new information be obtained. Rather, any new facts or evidence obtained must “potentially be determinative of the case” and must not reasonably have been capable of being obtained earlier. Neither of these requirements has been met in this case.

17The applicant has not provided any evidence or submissions to support that the reports he says that he received in November 2010 could not reasonably have been obtained earlier. In fact, no explanation is provided by the applicant as to how he obtained these reports at that time and why he could not have obtained them at an earlier time.

18Further, even if the report states what it is alleged by the applicant to state, this at best could be potential similar fact evidence in support of an allegation of racial discrimination. However, the point I make in my Decision is that in his complaint, the applicant provided no basis to connect his allegation as to the events alleged to have occurred on October 19, 2003 and any allegation of racial discrimination. The allegation that the applicant had been called “Paki” at this meeting was raised for the first time at the preliminary hearing and was not set out anywhere in the complaint. This defect in the applicant’s allegation is not remedied by a general statement in a report about the union’s alleged treatment of “minorities”.

19For all of the above reasons, the applicant’s Request for Reconsideration is denied.