Hunter v. Farlake Dairy, 2012 HRTO 12

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cyndy Hunter

Applicant

-and-

Farlake Dairy Ltd. and Hubertus Vermeer

Respondents

A N D B E T W E E N:

Dan Hunter

Applicant

-and-

Farlake Dairy Ltd. and Hubertus Vermeer

Respondents

Reconsideration DECISION

Adjudicator: Naomi Overend

Date: January 4, 2012

Citation: 2012 HRTO 12

Indexed as: Hunter v. Farlake Dairy

WRITTEN SUBMISSIONS BY

Cyndy and Dan Hunter, Applicants ) Self-represented

1On October 21, 2011, the Tribunal issued its Decision in this Application, 2011 HRTO 1906, dismissing the Application. The applicants have asked the Tribunal to reconsider its Decision.

BACKGROUND

2The Tribunal’s Decision dismissed the Applications on the basis that (1) the subject matter of many of the allegations in them had been appropriately dealt with by the Tribunal in its Decision on an application previously filed by Cyndy Hunter (2010 HRTO 669); and (2) that the remaining allegations of reprisal found in both Applications were not allegations over which the Tribunal had jurisdiction.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. There are new facts or evidence that could be potentially be determinative of the case; and

b. The Decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.

4With respect to the latter ground, the applicants acknowledge that they are unable to point to any case law or Tribunal procedure, but believe the matter to be of general importance.

DECISION

5Under section 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, 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.

6The 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:

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.

7The 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.

8As 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.

9I find that the applicants have not met the burden of establishing any of the threshold criteria justifying reconsideration. With respect to the latter ground, the test requires that the decision be in conflict with existing Tribunal case law or procedure and be a matter of general or public importance. That is, it is not sufficient to assert that the matter is of general importance.

10With respect to the assertion that there is new evidence, the applicants point to a letter they received from the individual respondent, dated two days after the conference call in which I heard their oral submissions. The applicants submit that I can infer that the individual respondent is admitting that it was their decision whether they remained as employees/tenants of the respondents, from which I can further infer that his civil action for negligence against them is a “bogus lawsuit” brought for the purposes of reprising against them.

11As noted at para. 12 in my Decision:

The Tribunal has previously held that pleadings filed in judicial and administrative proceedings are protected by the doctrine of absolute privilege and cannot be the basis of a reprisal claim. See, for example, Ornelas v. Casamici Restaurant, 2010 HRTO 1078, upheld on reconsideration, 2011 HRTO 1531; and Carlos v. 1174364 Ontario Ltd., 2009 HRTO 309.

12It is not appropriate for the Tribunal to engage in an inquiry concerning whether or not the party initiating the lawsuit is filing it for legitimate reasons, or whether the litigation is likely to succeed. As pointed out by the adjudicator in Orenlas, supra at para. 105:

… the underlying premise in Ketola and Curling is that the Tribunal ought to determine whether the threat or commencement of a civil action constitutes a reprisal on a case-by-case basis, having regard to the bona fides of the respondent. Undertaking such an inquiry, it seems to me, would require the Tribunal to consider the merits of the civil action, which would arguably be outside the Tribunal’s jurisdiction and probably incompatible with the fair, just and expeditious resolution of applications. [Emphasis added.]

13The applicants do not point to any other “new” facts or evidence, but rely on arguments already advanced before this Tribunal in both their written and oral submissions.

14In sum, I find that the applicants have 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.