HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Akalework Sebahtu Applicant
-and-
Starwood Canada Corp. o/a The Westin Harbour Castle Respondent
-and-
United Food and Commercial Workers, Local 333 Intervenor
RECONSIDERATION DECISION
Adjudicator: Douglas Sanderson
Indexed as: Sebahtu v. Starwood Canada Corp. o/a The Westin Harbour Castle
WRITTEN SUBMISSIONS
Akalework Sebahtu, Applicant Self-represented
1The applicant requests Reconsideration of the Tribunal’s Decision of February 15, 2012, 2012 HRTO 329 dismissing this Application because the applicant abandoned the Application by walking out of the hearing and because it has no reasonable prospect of success. The Tribunal held a Summary Hearing of the matter by teleconference on February 13, 2012.
2The circumstances in which reconsideration may be granted are set out in Rule 26.5:
326.5 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.
4The 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.
5The applicant filed a Request for Reconsideration on March 14, 2012 and relies upon Rule 26.5(c) and (d). In support of the request the applicant made the following submissions:
I treated the applicant and her lawyer with contempt, verbally abused her lawyer and threatened her lawyer;
The applicant and her lawyer were “disconnected” in the midst of the call;
The applicant did in fact file a Reply to the respondent’s Response, contrary to Decision, to which I referred during the hearing;
My decision was not fair, is incorrect, is misleading and unreasonable; and,
I displayed strong bias against the applicant and her lawyer and acted unprofessionally by threatening her lawyer.
6The applicant did not point to any decision that would indicate that my decision is in conflict with established jurisprudence or Tribunal procedure or provide any reason to conclude that the proposed reconsideration involves a matter of general or public importance. Accordingly there is no basis for granting reconsideration pursuant to Rule 26.5(c).
7A Vice-chair acting in a biased or unprofessional manner could be factors that would outweigh the public interest in the finality of the Tribunal’s decision. However, the applicant has simply repeated the bald assertion her lawyer made during the Summary Hearing that I was biased, after I granted intervenor status to the union and sought to assert control over the hearing. As described in the Decision, there is simply no basis on which an informed person could conclude that I was biased against the applicant. The applicant’s allegations of unprofessional and abusive conduct are equally unparticularized bald assertions. Again, as described in the Decision, I gave directions to the applicant’s lawyer regarding his conduct and warned him when he did not comply with my directions, which was well within my authority and both necessary and appropriate in the circumstances. During the hearing, both the respondent and intervenor agreed that there was no reason for me to recuse myself and that it was the applicant’s lawyer who acted in a highly unprofessional and inappropriate manner.
8Neither the Vice-chair nor any party has the ability to disconnect a particular participant in a telephone hearing. A participant who accidentally hangs up or is disconnected due to a technical malfunction can simply call back into the conference line. Neither the applicant nor her lawyer did so after they left the hearing and there is no record that either of them contacted the Tribunal to report that they had been disconnected and could not re-establish contact through the conference line. The applicant does not suggest that she or her lawyer attempted to do any of these things. At the hearing, the applicant, through her lawyer, insisted that she would not proceed before me and took the position that I should recuse myself and adjourn the matter in order for the Tribunal to assign another Vice-Chair to conduct the summary hearing. The applicant and her lawyer departed the hearing shortly after it would have become clear to them that I would not recuse myself and the summary hearing would continue. In the circumstances, there is no basis for altering my conclusion that the applicant left the hearing and abandoned the Application.
9The Tribunal has no record of the applicant filing a Reply to the respondent’s Response. The applicant did file a Response to a Request for an Order regarding the intervenor’s Request to Intervene and I may well have referred to both of these documents during the hearing. The Response to Request for an Order did not address the issue of whether the Application had no reasonable prospect of success and was, in fact, filed before the Tribunal ordered the summary hearing.
10In my opinion, the applicant’s submissions described no factors that outweigh the public interest in the finality of the Decision in question. Consequently, there is no basis for granting reconsideration pursuant to Rule 26.5(d). The applicant provided no reason to conclude that compelling and extraordinary circumstances exist that would call for reconsideration of the decision to dismiss this Application.
11The Request for Reconsideration is dismissed.
Dated at Toronto, this 15th day of June, 2012.
“Signed by”
Douglas Sanderson
Vice-chair