Vizcaya v. Mount Sinai Hospital, 2011 HRTO 734

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Salvador Vizcaya

Applicant

-and-

Mount Sinai Hospital and Sarah Jacobs

Respondent

RECONSIDERATION DECISION

Adjudicator: Michelle Flaherty

Date: April 18, 2011

Citation: 2011 HRTO 734

Indexed as: Vizcaya v. Mount Sinai Hospital

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination on the basis of colour, disability and creed with respect to goods, services and facilities, contrary to s. 1 of the Code. He also alleged that the respondent engaged in reprisals contrary to s. 8 of the Code.

2Following a summary hearing, the Tribunal dismissed the Application. See 2011 HRTO 216. The Tribunal held that the Application had no reasonable prospect of success. It found that, while the experience of being removed from a party was a difficult and embarrassing one for the applicant, there was no reasonable prospect of establishing a connection between the removal and a prohibited ground or a reprisal within the meaning of the Code.

3On February 28, 9, 2011, the applicant filed a Request for Reconsideration (“Request”) and submissions in support of the Request. A respondent is not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal. In the circumstances of this Request, the Tribunal did not deem it necessary to seek submissions from the respondent.

4Pursuant to section 45.7 of the Code, any party to a proceeding before the Tribunal may request that it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, 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.

5Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. In this regard, it is helpful to consider the Tribunal’s Practice Direction on Reconsideration, which states, in part:

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.

6In his Request, the applicant argues that the Decision ought to be reconsidered because there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; the Decision is in conflict with established case law or Tribunal procedure; the proposed reconsideration involves a matter of general public importance; and other factors exist that outweigh the public interest in the finality of the Tribunal’s decisions.

7The applicant states that:

a. the Tribunal erred in providing a confidential list of witnesses to the respondent in advance of the summary hearing, which the applicant says undermines the privacy and safety of those witnesses;

b. the Tribunal either failed to refer to or erred in referencing the facts of this case. In particular, the applicant disputes that there was a guest list for the after-party; and

c. the Tribunal erred in concluding that the Application had no reasonable chance of success.

8The applicant also reiterates arguments made at the hearing and takes issue with the legal and factual conclusions reached by the Tribunal.

9While it is evident that the applicant disagrees with the Decision, he has presented no basis to reconsider it. The applicant’s arguments do not fall within Rule 26.5 as a basis for reconsideration. His objections to the Decision essentially reiterate arguments he has already made and which were addressed in the Decision.

10In reviewing the matter to determine the Reconsideration Request, the Tribunal noted that the personal respondent had been mistakenly removed from the style of cause in an earlier Interim Decision (Vizcaya v. Mount Sinai Hospital, 2010 HRTO 2365) and in the Decision (Vizcaya v. Mount Sinai Hospital, 2011 HRTO 216 as a result of a clerical error. The style of cause has been corrected in this Reconsideration Decision and will be corrected accordingly in the earlier decisions.

11The Request for Reconsideration is denied.