HUMAN RIGHTS TRIBUNAL OF ONTARIO
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B E T W E E N:
Bernhard Koenig
Applicant
-and-
University of Toronto
Respondent
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RECONSIDERATION DECISION
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Adjudicator: David Muir
Indexed as: Koenig v. University of Toronto
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APPEARANCES
Bernhard Koenig, Applicant
Marty Rabinovitch, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of citizenship.
2On May 17, 2012 the applicant filed a Request for Reconsideration pursuant to section 47.5 of the Code of my Decision 2012 HRTO 767 dismissing the Application. In my Decision I concluded that aspects of the Application were out of time and others did not engage the Code. Finally I determined that the applicant's allegation that employment advertisements of the respondent indicating that Canadian citizens would be given preference in hiring was not discriminatory because it was protected by section 16 of the Code. The applicant takes issues with each of these conclusions.
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.
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.
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). Most relevant to this Decision is Rule 26 which states in part as follows:
26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 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.
6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen 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.
7I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.
8As indicated above, the applicant relies on Rule 26.1 (c). Despite his reliance on this Rule the applicant did not indicate how the Decision was in conflict with established jurisprudence or Tribunal Practice in respect of any of the issues canvassed in the Decision.
9It is important to note that all of the issues raised in this Request were the subject of submissions before the Tribunal, and dealt with in my Decision. In 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 have had an 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. In support of his Request as related to the timeliness of the Application as well as my conclusion that the bulk of the applicant's allegation made no connection to the Code, the applicant essentially repeats somewhat more elaborately, arguments already made before the Tribunal. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.
10The Tribunal also stated in Sigrist and Carson that a "conflict with established jurisprudence or procedure" requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. As indicated previously the applicant did not point to any inconsistency with any settled law. While the applicant evidently disagrees with the my conclusions, I am not satisfied that his submissions on this Request establish that my Decision conflicts with established jurisprudence.
11As regards to the applicant's claim that the employment advertising that the respondent uses is discriminatory because it announces that Canadian citizens and landed immigrants will be preferred in hiring. The applicant states that the regulatory scheme established by Canada which mandates the use of the allegedly discriminatory language in advertising is contradictory. The applicant states that because of the use of this language, weaker candidates are hired in many cases and this result is inconsistent with the mandated competitiveness considerations outlined in other parts of the legislative scheme and therefore it cannot be upheld by section 16 of the Code. The applicant also states that this issue should not be determined without hearing evidence from representatives of Canada with respect to the procedure and considerations for hiring foreign academics before making a final determination of the Application. The applicant states finally that the issues raised by the Application in particular the section 16 issue are matters of general public importance and therefore it would be in the public interest to have those issues determined after a full hearing.
[12] I find that the submissions on this point amount to entirely new and additional argument on issues already canvassed before the Tribunal and therefore not a proper basis for reconsideration. See Sigrist and Carson, above. However I have nonetheless considered the applicant's submission on this point and do not understand how an alleged incoherence in the Federal legislative scheme with which the respondent felt obligated to comply, assuming without deciding that it was in fact incoherent, can affect the application of the provision to these circumstances. In any event this argument was not made at the hearing and I find, contrary to the applicant's submission, that it is not a matter of general public importance justifying the reconsideration of my Decision.
13In conclusion, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal's Decision. The Request is denied.
Dated at Toronto, this 31^st^ day of May, 2012.
"Signed by"
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David Muir
Vice-chair